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OUTLINES 


LAW  OF  BAILMENTS 
AND  CARRIERS 


BT 


EDWIN    C.    GODDARD 

•  r  1 

PROFESSOR   OF  LAW  IN  THE  UNIVERSITY  OF    MlClIKiAN 


CHICAGO 

CALLAGHAN    &   COMPANY 
1904 


T 


Copyright  ]904 

BT 

CALLAGHAN  &  COMPANY 


CE.^TRAL    TYPESETTING    CO., 
CHICAGO. 


^ 


«5 


PREFATORY'    NOTE 


The  Outlines  of  Bailments  and  Carriers  form  i)art  of  a  com- 
plete Avork  on  that  subject  intended  for  the  use  of  classes  in 
hnv  schools.  The  other  part,  which  is  nearly  ready  for  pub- 
lication, consists  of  select  cases  illustrating  and  amplifying 
principles  stated  in  the  Outlines.  It  is  the  purpose  of  the  Out- 
lines not  only  to  state  the  foundation  principles  of  the  sub- 
ject, but  to  put  these  in  orderly  and  consecutive  form  in 
order  that  the  student  may  have  an  opportunity  to  see  the 
subject  as  a  whole.  It  is  believed  that  any  study  of  the  cases 
Avithout  some  such  connected  view  of  the  subject  will  involve 
considerable  loss  of  time  and  result  in  a  good  deal  of  indefi- 
niteness  in  conception.  The  present  edition  is  hnri-ied  I't-om 
the  press  for  use  in  the  author's  classes  during  the  present 

year. 

EDWIN  C.  GODDAKD. 

Ann  Arbor, 

January  1,  1904. 


PART  I. 
OF  BAILMENTS  IN  GENERAL. 


CHAPTER  I. 


OF  THE  DEFINITION  AND  CLASSIFICATION  OF 
BAILMENTS. 

§  1.     Bailmeut  defined.  §    7.     Transfer    of    possession,    but 

2.  A   contractual   relation.  not  of  title. 

3.  Delivery.  8.     Bailment  and  sale. 

4.     Illustrations.  9.     Special  rules. 

5.     Acceptance.  10.     Bailment  purpose. 

6.  The  subject-matter.  11.     Redelivery,    or    delivery    over. 

12.     Classification    of    bailments. 

§  1.  Definition.— Many  attempts  have  been  made  to  define 
a  bailment  but  none  is  free  from  criticism.  For  our  purpose  it 
is  enough  to  say  that— 

A  bailment  is  a  contract  relation  resulting  from  the  delivery 
of  personal  chattels  by  the  owner,  called  the  bailor,  to  a  second 
person,  called  the  bailee,  for  a  specific  purpose,  upon  the  ac- 
complishment of  which  the  chattels  are  to  be  dealt  with  ac- 
cording to  the  owner's  direction. 

An  analysis  of  this  statement  will  make  clear  the  primary 
principles  applicable  to  the  subject. 

§  2.  Contractual  relation.— The  bailment  relation  is  one  of 
contract  and  the  principles  of  contract  law  are  applicable 
thereto.     No  one  can  be  made  a  party  to  a  bailment  except 

§  1,      [^_]      Krause    v.    Common-         §  2.      Costello    v.    Ten    Eyck,    86 
i\-ealth,  93  Pa.  St.  418,  39  Am.  R.     Mich.  348,  49  N.  W.  R.  152,  24  Am. 
762;   [— ]     Coggs  v.  Bernard,  2  Ld.     St.  R.  128. 
Raymond,   909,   1   Smith  Lead.   Cas. 
199. 

1  1 


(4<  3.5  OF  BAILMENTS  IN  GENERAL. 

l)y  his  contract  freely  niadc  or  by  some  condition  which  by 
operation  of  law  is  re«,'arded  as  equivaU-nt  to  a  contract. 

§  3.  Delivery.  — The  word  bailnicnt  conies  into  the  English 
Connnon  Law  throuj^di  the  Norman-French.  It  is  derived  from 
baillcr,  to  deliver,  and  delivery  has  been  said  to  be  the  key 
word  of  bailment  law. 

A  prime  requisite  to  the  establishment  of  the  relation  is  a 
delivery  by  the  bailor  to  the  bailee,  or  something  which  by 
operation  of  law  takes  the  place  of  such  delivery.  The  bail- 
ment relation,  then,  may  be  formed  by  delivery,  actual  or 
constructive,  or  by  operation  of  law. 

5;  4.     Illustrations. — (a)     Actual  delivery   is   a   manual 

handing  over  of  the  chattel  by  the  bailor,  or  his  authorized 
representative,  to  the  bailee  or  to  his  agent.  The  delivery  of 
a  watch  to  a  jeweler  for  repair,  of  a  horse  to  a  smith  to  be 
shod,  and  of  a  package  to  an  expressman  to  be  carried,  are 
familiar  illustrations. 

(b)  Constructive  delivery  takes  place  when  because  of  the 
circumstances,  or  of  the  nature  of  the  chattel,  actual  delivery 
is  impossible  or  useless.  The  delivery  of  a  key  to  a  warehouse 
may  be  a  constructive  delivery  of  the  goods  therein,  and  the 
retention  by  the  vendor  of  the  goods  sold  constitutes  him,  so 
long  as  he  retains  possession,  the  bailee  of  such  goods  by  con- 
structive delivery,  without  any  actual  handling  of  the  goods 
by  either  party. 

(c)  Delivery  by  operation  of  law  results  from  the  finding 
of  lost  goods,  or  the  seizure  of  goods  under  legal  process.  The 
finder,  or  the  officer  is,  by  operation  of  law,  not  by  consent  of 
the  owner,  bailee  of  the  goods  while  they  remain  in  his  pos- 
session. 

§  5.  Acceptance. — No  delivery  is  complete  till  accept- 
ance by  the  bailee.  One  cannot  be  compelled  to  become  a 
bailee  without  his  consent.  Even  the  finder  of  lost  goods  does 
not  become  the  bailee  unless  he  voluntarily  takes  possession  of 
the  goods. 

§  4.    King  V.  .Turnian,  35  Ark.  190,  |  — ]  Foster  v.  Essex  Bank,  17  Mass. 

37  Am.  R.  11,  16,  and  note.  479,  9  Am.  D.   168;   First  National 

§  5.      Michigan    Central    R.    R.    v.  Bank   v.    Ocean    National   Bank,    60 

"arrow,  73  111.  348,  24  Am.  R.  24S;  N.  Y.  27S,  19  Am.  R.  181. 

0 


DEFINITION  AND  CLASSIFICATION.  §§  6-8 

§  6.  The  subject-matter.— This  delivery  must  be  one  of  per- 
sonal chattels.    Real  estate  can  not  be  the  subject  of  a  bailment. 

Formerly  only  corporeal  property  could  be  bailed,  but  at 
the  present  time  every  species  of  personalty,  corporeal  or  in- 
corporeal, is  bailable.  Thus,  stocks,  bonds,  and  other  evidences 
of  property,  as  well  as  debts  and  every  sort  of  chose  in  action, 
are  now  pledged,  or  otherwise  held  in  bailment,  under  the 
same  principles  as  tangible  property.  Indeed  while  the  bailed 
property  must  be  in  existence,  a  contract  of  bailment  as  to 
property  not  yet  in  existence  will  attach  to  such  property 
when  it  comes  into  existence,  subject,  perhaps,  to  the  inter- 
vening rights  of  third  persons. 

§  7.  Transfer  of  possession  but  not  of  title.— In  a  bailment 
the  owner  delivers  the  chattel  to  the  bailee  who  thereby  ac- 
quires possession,  but  not  title.  The  ownership  remains  in  the 
bailor,  and  though  the  bailee  may  himself  be  the  rightful 
owner,  yet  so  long  as  he  retains  possession  as  bailee  he  may  not 
dispute  the  bailor's  title. 

§  8.     Bailment   and   sale. — The    distinction   between   a 

bailment  and  a  sale  is  clear.  A  sale  passes  the  title  to  the 
vendee  at  once.  He  may  acquire  possession  immediately,  or 
only  a  right  to  possession  at  a  future  time.  A  bailment  passes 
possession  to  the  bailee  at  once.  He  does  not  acquire  the  title, 
nor,  except  in  a  bailment  Avith  an  option  to  purchase,  does  he 
acquire  any  right  to  title  in  the  future.  In  a  sale  title  passes, 
in  a  bailment  it  does  not. 

In  practice  the  distinction  is  often  troublesome.  Difficulty 
arises  in  finding  a  test  by  which  to  determine  the  intention  of 
the  parties,  for  it  is  their  intention  that  governs. 

Three  eases  may  be  noted— 

(a)  If  the  identical  property  is  to  be  returned,  either  in 
specie  or  in  altered  form,  the  transaction  is  a  bailment. 

(b)  If  other  goods  of  the  same  or  of  different  kind  are  to 
be  returned,  the  transaction  is  what  was  known  in  the  Roman 
law  as  a  mutuum,  and  is  considered  a  sale  and  not  a  bailment. 

§7,      [_]       Krause    v.    Common-  4.33,  57  Am.  D.  530;    [— ]   Bretz  v. 

wealth,  93  Pa.  St.  418,  39  Am.  E.  Diehl,  117  Pa.  St.  589,   11  Atl.  B. 

762;  Simpson  v.  Wrenn,  50  111.  222,  893,    2    Am.    St.    K.    706.      See   also 

99   Am.   D.   511;    [— ]      Pulliam   v.  Chase  v.  Washburn,  1  Ohio  St.  244, 

Burlingame,  81  Mo.  Ill,  51  Am.  E.  59    Am.   D.    623;    Ledyard   v.    Hib- 

229.  bard,    48    Mich.    421,    12    N.   W.    K. 

§  8.     Foster  v.  Pettibone,  7  N.  Y.  G37,  42  Am.  E.  474. 


5^  f)H  OF  BAILMENTS  IN  GENERAL. 

,c  If  the  1,'oods  are  mixed  with  other  goods,  as  grain  in 
an  elevator,  th"en  tlie  tU)etrine  of  confusion  of  goods  applies, 
and  the  owners  of  the  grain  so  mixed  become  owners  in  common 
of  the  mass,  or  else  the  transaction  is  a  sale,  and  title  to  the 
whole  passes  to  the  elevator  owner. 

It  is  often  difficult  to  determine  whether  the  parties  intended 
title  to  pass.  The  cases  on  this  point  are  irreconcilable.  The 
most  useful  test  lies  in  determining  with  which  party  the  eon- 
tract  leaves  that  control  of  the  goods  which  is  consistent  with 
ownership.  If  the  elevator  owner  may  use  out  of  the  grain  at 
will  under  an  agreement  to  return  a  like  amount,  or  to  pay  the 
market  price,  when  demand  is  made,  he  has  control,  is  the 
owner,  the  transaction  was  a  sale.  If,  however,  the  depositor 
of  the  grain  may  at  any  time  demand  his  proportion  of  the 
mass  of  grain,  or  the  market  price,  the  elevator  owTier  under- 
taking at  all  times  to  keep  on  hand  enough  grain  to  cover 
all  deposits,  then  it  is  clear  that  the  control  remains  in  the 
depositor,  the  title  did  not  pass,  the  transaction  was  a  bail- 
ment. 

The  importance  in  many  cases  of  determining  whether  the 
transaction  was  a  bailment  or  a  sale  will  be  apparent  from  the 
cases. 

$  9.    Special  rules. — In  some  states,  on  the  ground  that 

a  bailment  best  represents  the  relation  intended  by  the  parties, 
the  courts  have  been  inclined  to  hold  all  such  deposits  in  au 
elevator  to  be  bailments.  They  are  sometimes  made  bailments 
by  statute. 

§  10.  Bailment  purpose.— The  specific  purpose  for  which  the 
chattel  is  delivered  to  the  bailee  is  called  the  bailment  purpose. 
This  purpose  must  of  course  be  a  legal  one  and,  as  will  presently 
appear,  it  serves  as  the  most  satisfactory  basis  of  classification 
of  bailments,  and  leads  to  most  of  the  legal  consequences  of  the 
relation. 

§11.  Redelivery,  or  delivery  over.— Upo-n  the  accomplish- 
ment of  the  bailment  purpose,  the  chattel  is  to  be  dealt  witli 

§  9.     See  2  Am.  St.  R.  711,  note,  Jones,  Story  and  Kent  as  stated  in 

6    Am.   La%v    Review,   450;    Hall   v.  [ — ]    Krause   v.    Commonwealth,    93 

Pillsbury,   4.3    Minn.    33,   44   X.   W.  Pa.     St.     418,     39     Am.     E.     762; 

K.  673,  9  Am.  St.  R.  209.  [— ]  Pulliam  v.  Burlingame,  81  Mo. 

§11.     Compare  the  definitions  of  111,  'A  Am.  R.  229. 


Definition  and  classification.  ^  |) 

according  to  the  owner's  directions.  In  many  eases  it  is  to  be 
redelivered  to  the  owner.  In  the  ease  of  delivery  of  goods  to 
a  carrier,  or  consignment  to  a  factor,  they  are  to  be  delivered 
to  a  third  person,  while  in  the  case  of  a  bailment  with  an  option 
to  purchase  they  may  be  retained  by  the  bailee  himself. 

In  general  the  bailor  is  the  true  owner  and  the  bailee  must 
deal  with  the  goods  according  to  his  directions.  If  he  delivers 
them  otherwise,  he  does  so  at  his  peril,  and  unless  he  can  es- 
tablish that  they  were  delivered  to  one  having  paramount 
right,  he  will  be  liable  to  the  bailor. 

§  12.  Classification.  — Until  very  recent  times  the  Common 
Law  of  bailments  Avas  in  a  crude  and  formative  condition.  As 
bailment  law  in  Rome  was  well  defined,  early  English  legal 
writers  on  the  subject  were  greatly  influenced  by  the  Civil  Law 
and  adopted  the  Roman  division,  which  was  a  mere  catalogue 
rather  than  a  scientific  classification. 

See  Braeton  (circ.  1260),  Lord  Holt  (1703),  Sir  William 
Jones  (1781). 

Judge  Story,  in  his  classic  work  on  the  subject,  first  sug- 
gested a  scientitie  classification  based  on  the  bailment  pur- 
pose.   He  divided  bailments  into  three  classes — 

(a)  Bailments  for  the  sole  benefit  of  the  bailor,  including 
the  Roman  deposit um  and  mandatum. 

(b)  Bailments  for  the  sole  benefit  of  the  bailee,  including 
the  Roman  commodatum. 

(c)  Bailments  for  the  mutual  benefit  of  both  parties,  in- 
eluding  the  Roman  pig)ius,  or  pledge,  and  locatio.  or  hiring. 

The  Civil  Law  recognized  also  the  miituum,  or  the  loan  of 
goods  for  consumption,  to  be  replaced  by  other  goods  of  the 
same  kind.  It  has  been  seen  that,  at  the  Common  Lnw.  this  is 
not  a  bailment  but  a  sale. 

There  is  not  an  exact  correspondence  between  the  Roman 
and  the  Common  Law  bailments  and  this  has  sometimes  led  to 
confusion.  The  Roman  deposit um  and  mandatum,  especially, 
involved  distinctions  and  embraced  relations  not  recognized  in 
the  Common  Law.  Definitions  of  these  various  kinds  of  bail- 
ments will  be  given  in  connection  with  their  separate  treat- 
ment. 

§  12.  See  St'houlcr,  Bailments  and  v.  Commonwealth.  93  Pa.  St.  418, 
Carriers,   §   26,   notes;    [— ]    Krause     ?.9  Am.  K.  762. 

5 


§12 


OF  BAILMENTS  IN  GENERAL. 


The  various  bailments  and   their  relations  to   each   other 
may  be  outlined  as  follows: 

I  depositum 
rgratultous  services]  ^^^aatum 
gratiiltousJ 

Lgratuitoiis  loans      i  commodatum 


Bailments^ 


mutual 
^benefit 


fpignuK,  or  pledge 

flocatio  rel,  the  hired  use  of  a  thing 


Incatio, 
Lor   hiring  •( 


^ordinary 


locatio  operis, 
hired  services, 
jibout  a  thing 


locatio 
custodiae 

locatio  operis 
faciendi 

locatio  operis 
mercium 
^vehendarum 


extraordinary 
^entered  into  by  ' 


innlfeepers 


common 
carriers 
of  goods 


To  these  may  be  added  the 


carriers  of  passengers 
Quasi-l)ailment  relations  of    -{  the  post-office  department 

telegraph  and  telephone  companies 


CHAPTER  II. 

OF  THE  LEGAL  RESULTS  OF  THE  RELATION  IN 
GENERAL. 


13. 
14. 

15. 
16. 

17. 

18. 
19. 
20. 
21. 
22. 
23. 
24. 


25. 


Contract  principles  apply. 

Principles  applicable  to  all 
bailments. 

Care. 

Three  degrees  of  dili- 
gence. 

The  burden  of  proof. 

Consideration. 

Expenses. 

Defect  in  bailed  chattel. 

Eight  to  use. 

Property  of  bailee. 

Liability  to  third  persons. 

Termination   of   bailment. 

A.     By  act  of  the  parties. 

1  Accomplishment  of  pur- 
pose, or  efflux  of  time. 

Bailment  contract  executed. 

S.  Rescission  of  bailment 
contract. 


26.  (1)     By  act  of  both  parties. 

27.  (2)     By  act  of  bailee. 

28.  (3)     By  act  of  bailor. 

29.     ^Bailee's  wrong. 

B.     By  operation  of  law. 

30.  1.     By  changed  status  of  the 

parties. 

31.     Death. 

32.     Bankruptcy,        marriage, 

insanity. 

33.  2.     Change  of  status  of  bailed 

chattel. 

34.  Kedelivery. 

35.     What  is  to  be  redelivered. 

36.     Where  returned. 

37.     To  whom  redelivered. 

38.     Adverse  claims. 

39.  Special  contract. 


§  13.  Contract  principles  apply. — The  law  of  bailments  is 
a  branch  of  the  law  of  commercial  contracts.  Accordingly, 
all  the  requisites  of  contract*,  such  as  competent  parties, 
mutual  assent,  consideration,  etc.,  apply  to  all  classes  of  bail- 
ments. 

As  any  bailee  may,  and  the  great  carrying  corporations, 
such  as  railways,  steamship  lines,  express  and  forwarding 
companies,  constantly  do,  act  by  agent,  the  principles  of 
agency  are  always  applicable.  Without  detailed  notice,  there- 
fore, of  the  rules  of  contracts  and  agency,  it  will  be  under- 
stood that  they  apply  to  every  class  of  bailments.  Further- 
more, partnerships  or  corporations,  as  bailors  or  bailees,  are 
subject  to  the  same  rules  of  law  that  apply  to  them  in  othor 
contract  relations. 

7 


85  14-16  ^^  BAILMENTS  IN  GENERAL. 

j;  14  Principles  applicable  to  all  bailments.-It  will  avoid 
needless  repetition  to  discuss  in  the  present  chapter  those 
principles  which  are  applicable  to  bailments  generally,  leaving 
for  consideration  in  later  chapters  those  legal  results  pe- 
culiar to  the  several  classes  of  bailments. 

§15  Care.— A  matter  of  prime  importance  in  bailments 
is  the  care  of  the  bailed  goods  to  be  exercised  by  the  bailee. 
This  does  not  admit  of  precise  definition.  Whether  due  care 
has  been  exercised  in  a  given  case  is  ordinarily  a  question  of 
fact  to  be  determined  by  the  common  sense  of  a  jury  m  view 
of  all  the  circumstances  surrounding  the  case. 

Manifestly,  the  care  to  be  exacted  should  vary  with  the 
nature  and  value  of  the  thing  bailed,  the  use  to  which  it  is  to 
be  put,  the  hazard  of  the  bailment,  and  many  other  circum- 
stances. Great  stress  is  laid  by  the  law  on  the  benefit  to  be 
derived  from  the  bailment.  The  greatest  diligence  is,  in  gen- 
eral, demanded  of  the  bailee  if  he  receives  the  sole  benefit  of 
the  bailment;  less  diligence  is  required  if  the  bailment  is  mu- 
tually beneficial  to  bailor  and  bailee;  while  comparatively 
slight  diligence  suffices  if  the  bailor  alone  profits  by  the  bail- 
ment. 

j;  16.    Three  degrees  of  diligence. — In  the  effort  to  reach 

some  degree  of  certainty  in  this  necessarily  uncertain  question, 
the  courts,  from  Lord  Holt's  time  down,  have  recognized 
three  degrees  of  care,  which  have  been  variously  defined.  Un- 
fortunately, they  have  also  recognized  three  degrees  of  negli- 
gence, and  by  implication,  at  least,  have  held  that  there  might 
be  negligence  with  no  resulting  legal  liability. 

The  three  degrees  of  diligence  are  slight,  ordinary  and 
great.     To  these  correspond  gross,  ordinary  and  slight  negli- 

§  15.     [ — ]     Doorman  v.  Jenkins,  Essex  Bank,  17  Mass.  479;  9  Am.  D. 

2   Ad.  &  El.   256,   29  E.   C.  L.  80;  168;   [— ]  Gray  v.  Merriam,  148  111. 

[— ]     Gray  v.  Merriam,  148  111.  179,  179;  39  Am.  St.  R.  172;   [— ]     Wil- 

35  N.  E.  R.  810,  39  Am.  St.  R.  172;  son  v.  Brett,  11  Mees.  and  W.  113; 

[— ]     Preston  v.  Prather,  137  U.  S.  [— ]     Preston    v.    Prather,    137    U. 

604;  State  v.  Meagher,  44  Mo.  356,  S.    604;     First    National    Bank    v. 

100  Am.  D.  298.  Graham,    79    Pa.    St.    106,    21    Am. 

§  16.         [— ]       Steamboat       New  R.    49 ;    Woodruif    v.    Painter,    150 

World    V.    King,    16   How.    (U.    S.)  Pa.  St.  91,  24  Atl.  R.  621,  30  Am. 

469;    [— )  Railway  v.  Lockwood,  17  St.  R.  786. 
Wall.   (U.  S.)    357;    [— ]   Foster  v. 

8 


LEGAL  RESULTS  OF  THE  RELATION.  §  17 

gence,  each  degree  of  negligence  being  regarded  as  the  want  of 
ihe  corresponding  degree  of  care. 

From  the  many  definitions  attempted,  it  is  perhaps  enough 
to  say  that — 

Ordinary  diligence  is  such  as  an  ordinarily  prudent  man  is 
wont  to  exercise  in  the  conduct  of  his  own  affairs  of  like 
kind.    Less  than  this  is  slight  diligence,  more  is  great  diligence. 

It  will  be  seen  that  this  adds  little  to  the  definiteness  of 
the  subject,  and  some  courts  have  expressed  dissatisfaction 
with  the  distinctions,  preferring  to  determine  in  each  case 
whether,  in  view  of  all  the  circumstances,  the  requisite  care 
has  been  exercised.  Courts  recognizing  the  three  degrees 
hold  that — 

In  bailments  for  the  sole  benefit  of  the  bailor  slight  care 
is  all  that  is  required  of  the  bailee,  and  he  is  liable  only  for 
gross  negligence. 

In  bailments  for  the  sole  benefit  of  the  bailee  great  care 
is  required,  and  the  bailee  is  responsible  for  slight  negligence. 

In  mutual  benefit  bailments  ordinary  care  is  required,  and 
the  bailee  must  answer  for  ordinary  neglect. 

In  a  later  chapter  it  will  appear  that  the  innkeeper  and 
common  carrier  are  subject  to  special  rules. 

§  17.     The  burden  of  proof  in  showing  negligence,  at 

the  outset,  rests  upon  the  plaintiff'.  Some  authorities  say  that 
while  the  weight  of  evidence  may  shift,  the  burden  of  proof 
never  shifts,  but  remains  throughout  with  the  plaintiff'.  Others 
say  that  the  burden  shifts.  The  plaintiff  certainl}^  must  es- 
tablish negligence  by  a  preponderance  of  evidence. 

According  to  most  cases,  the  plaintiff'  makes  out  a  prima 
facie  case  by  showing  loss  or  injury.  The  defendant  must 
then  explain  the  loss  or  else  show  affirmatively  that  he  exer- 
cised due  care. 

§  17.      Compare    [— ]       Claflin    v.  [— ]     Schmidt    v.    Blood,    9    Wend. 

Meyer,    75    N.    Y.    260,    31    Am.    E.  (X.  Y.)  1268,  24  Am.  D.  143;  Hilde- 

467,    and    Higman    v.    Camody,    112  brand  v.   Carroll,   106   Wis.   324,   82 

Ala.  267,  20  So.  R.  480,  57  Am.  St.  N.   W.   R.    145,   80  Am.   St.   R.   29; 

E.  33.     See  also  Boies  v.  Hartford,  Hislop  v.  Ordner,  28  Tex.  Civ.  App. 

etc.,    R.    R.,    37    Conn.    272;    9   Am.  540,    67    S.   W.   R.    337;    Willett    v. 

E.    347;    Cumins   v.    Woods,   44   111.  Rich,  142  Mass.  356,  7  N.  E.  R.  776, 

416,   92   Am.   D,   189 ;    Mills   v.   Gil-  56  Am.  R.  684. 
breth,  47  Me.  320;  74  Am.  D.  487; 


vv  iw  o1  OF  BAILMENl'S  IN  GENEKAL. 

.  18  Consideration-Like  every  contractual  relation  the 
ba  iment  must  be  upon  consideration.  In  S-^-^^-^^-" 
this  consists,  not  in  any  benefit  to  the  promisor,  but  m  detri- 
n  nt  to  the  promisee.  In  the  bailment  for  the  sole  benefit  of 
X.  bailor,  this  detriment  arises  from  the  fact  that  the  bailee, 
by  undertaking  the  service,  prevents  the  bailor  from  securing 
another  to  perform  it,  while  in  a  bailment  for  the  benefit  of 
the  bailee  it  is  the  bailee  who  is  prevented  from  securing  the 
benefit  at  the  hands  of  another.  It  follows,  then,  that  until 
the  bailee  in  the  first  case,  has  entered  upon  the  undertaking, 
or  in  the  second,  until  the  bailor  has  loaned  the  chattel,  there 
is  no  consideration.  Hence  there  can  be  no  liability  for  non- 
feasance but  only  for  misfeasance,  in  gratuitous  bailments. 

§  19.  Expenses.— In  the  absence  of  a  special  contract,  or- 
dinary expenses  for  caring  for  the  chattel  are  to  be  borne  by 
the  bailee,  extraordinary  expenses  by  the  bailor,  unless  they 
arise  from  default  on  the  part  of  the  bailee,  when  the  latter 
will  be  liable  for  the  consequences  of  his  own  fault.  It  fol- 
lows that,  for  extraordinary  expenses  necessary  for  proper 
preservation  of  the  bailed  chattel,  the  bailee  may  bind  the 
bailor  by  a  contract  with  third  persons. 

§  20.  Defect  in  bailed  chattel.— The  bailor  owes  the  bailee 
the  duty  to  inform  him  of  defects  in  the  bailed  article  which 
are,  or  reasonably  should  be,  known  to  the  bailor,  and  which 
are  likely  to  be  the  source  of  danger  to  the  bailee.  For  any 
injury  suffered  by  the  bailee  in  consequence  of  his  failure  so 
to  do,  the  bailor  is  liable,  unless  the  defects  were  patent  and 
equally  within  the  knowledge  of  both  parties. 

§  21.  Right  to  use. — The  bailee  has  no  right  to  use  the  chat- 
tel unless  it  appears  from  the  bailment  contract,  or  from  the 
circumstances,  that  the  consent  of  the  owner  to  the  use  may 

§  18.     [— ]   Coggs  V.    Bernard,    2  Dana,  69  N.  H.  264,  39  Atl.  E.  982', 

Ld.  Raymond  909,  1  Sm.  Lead.  Cas.  76  Am.  St.  E.  170. 

199;      [— ]     Thorne  v.      Deas,      4         §21.     [— ]     Wentworth     v.     Mc- 

Johns.  (N.  Y.)   84.  Duffie,  48  N.  H.  402;  [— ]     Spoonef 

§  19.      Barter    v.  Blanchard,    64  v.    Manchester,    133    Mass.    270,    43 

Barb.   (N.  Y.)  617;  [— ]     Leach  v.  Am.  E.  514;   Ray  v.  Tubbs,  50  Vt. 

French,  69  Me.  389,  31  Am.  R.  296.  688,    28    Am.    R.    519;     Alvord    v. 

§  20.      Hadley    v.  Cross,    34    Vt.  Davenport,  43  Vt.  30. 


586,    80    Am.    D.    699;    Gagnon    v. 


10 


LEGAL  RESULTS  OF  THE  RELATION.  §§  22-24 

fairly  be  presumed.    Such  consent  will  be  presumed  in  so  far 
as  the  use  of  the  chattel  is  necessary  to  its  preservation. 

If  the  bailee  without  authority  use  the  thing,  or  if  having 
authority  he  use  it  in  a  manner  unauthorized,  he  does  so  at  his 
peril  and  is  absolutely  liable  for  any  loss  or  injury  that  may 
result.  His  wrongful  use,  as  will  appear  later,  in  many  cases 
amounts  to  a  conversion  of  the  chattel. 

§  22.  Property  of  bailee. — In  general,  the  bailee  has  a  spe- 
cial property  in  the  thing  bailed  while  the  general  property 
remains  in  the  bailor.  It  is  a  disputed  point  whether  the  pos- 
sessory interest  of  the  gratuitous  bailee,  or  of  the  bailee  at 
will,  amounts  to  a  property  interest.  All  agree,  however,  that 
the  interest  of  the  bailee  is  such  as  to  enable  him  to  maintain 
trespass  or  trover  against  third  persons  who  interfere  with 
his  possession.  All,  except  gratuitous  bailees,  may  also  main- 
tain replevin,  an  action  founded  upon  a  property  right,  while 
right  of  possession  is  sufficient  basis  for  trespass  or  trover. 
Even  the  bailee  who  is  a  finder  has  a  title  good  against  all  the 
world  except  the  true  owner  and  may  maintain  his  possessory 
rights  by  appropriate  actions. 

The  bailor,  also,  has  a  right  of  action  in  replevin,  trover, 
trespass,  or  case,  against  a  wrong-doer,  but  a  recovery  by 
either  is  a  bar  to  an  action  by  the  other. 

§  23.  Liability  to  third  persons. — If  the  bailee's  use  of  the 
chattel  result  in  injury  to  third  persons  he  alone  is  responsible, 
he  alone  has  control  of  the  chattel,  and  he  is  not,  in  its  use, 
the  agent  of  the  bailor.  The  bailee  is  also  liable  for  injuries 
resulting  from  the  use  of  the  chattel  by  his  servants  acting  in 
the  course  of  their  employment. 

§  22.     [ — ]     Armory  v.  Delamirie,  rule   in    Hostler 's    Adm  'r    v.    Skull, 

1    Strange    505,    1    Sm.    Lead.    Cas.  2  Haywood   (N.  C.)   179,  1  Am.  D. 

470;   [— ]     Little  v.  Fossett,  34  Me.  5S3. 

545,  56  Am.  D.  671 ;  Baggett  v.  Mc-  §  23.     Sproul  v.  Heramingway,  14 

Cormaek,  73  Miss.  552,  19  So.  R.  89,  Pick.   (Mass.)   1,  25  Am.  D.  350. 
55  Am.  St.  R.   554.     See  the  early 


]1 


^  <  25-27  O^  BAILMENTS  IN  GENERAL. 

j;  24.  Termination  of  bailment.— Like  other  contractual  re- 
lations, the  baihuent  relation  may  be  terminated— 

A.  By  act  of  the  parties. 

1.  By  the  accomplishment  of  the  bailment  purpose 
or  the  expiration  of  the  time  for  which  the  prop- 
erty was  bailed. 

2.  By  the  rescission  of  the  bailment  contract.     This 

may  be — 

(1)  By  mutual  consent  of  bailor  and  bailee. 

(2)  By  redelivery  of  the  chattel  by  the  bailee. 

(3)  By    abatement    of    the    contract    by    the 
bailor. 

B.  By  operation  of  law. 

1.  By  change  in  the  status  of  the  parties. 

2.  By  change  in  the  status  of  the  bailed  chattel. 

A.     Termination  by  Act  of  the  Parties. 
1.    Accomplishment  of  purpose  or  efflux  of  time. 

§  25.  Bailment  contract  executed. — AVhen  the  purpose  of  the 
bailment  is  fully  accomplished,  or  the  time  for  which  the 
property  was  bailed  has  expired,  the  life  of  the  bailment  is 
ended  and  the  bailee  is  bound  to  dispose  of  the  bailed  chattel 
as  directed  by  the  bailor,  or  excuse  his  failure  so  to  do.  If  he 
does  not,  the  bailor  may  treat  his  failure  as  conversion  of  the 
property,  or  as  a  renewal  of  the  bailment  for  a  new  period 
on  the  same  terms. 

2.     Rescission  of  the  Bailment  Contract. 

i  26.  (1.)  By  act  of  both  parties. — Like  other  contracts, 
bailments  may  be  terminated  at  any  time  by  mutual  consent 
of  the  parties.  The  law  has  no  interest  in  requiring  the  full 
performance  of  a  contract  which  both  parties  desire  to  re- 
nounce. 

§  27.     (2.)     By  act  of  bailee. — The  bailee  has  always  the 

§  L'.'j.       [— ]     Green    v.    Hollings-  §  26.       See     Story,     Bailments    & 

worth,   5  Dana    (Ky.)    173,   30   Am.  Carriers,  §§  418,  418a. 

D.    680;    Benje   v.    Creagh,    21   Ala.  §27.     Story,     Bailments     &     Car- 

]51.       See    Schouler,    Bailments    &  riers,  §§  202,  258,  271. 
Carriers,  §  159;  Story,  Bailments  & 
Carriers,  §  259. 

12 


LEGAL  RESULTS  OF  THE  RELATION.  §§  28-30 

power,  thoujih  not  usually  the  right,  to  ternunate  the  bailment 
at  any  time.  The  bailor  has  no  action  at  law  to  compel  the 
bailee  to  retain  the  chattel  and  perform  the  bailment  purpose. 
And  equity  wnll  not  decree  specific  performance  of  personal 
services,  nor  will  it,  where  damages  are  ade(|uate,  grant  an  in- 
junction to  prevent  the  return  of  the  chattel  bailed.  The 
bailor  is  left  to  an  action  for  such  damages  as  he  can  show  he 
has  suffered  by  reason  of  the  bailee's  wrong. 

In  gratuitous  bailments,  the  bailee  need  not  enter  upon  the 
undertaking,  and  in  bailments  for  his  sole  benefit  even  after 
the  chattel  has  been  delivered  to  the  bailee,  he  has  the  right 
to  return  it  at  any  time.  A  depositary  or  mandatary,  how- 
ever, though  he  is  to  receive  no  compensation,  has  no  right 
after  he  has  entered  upon  the  undertaking  to  abandon  it  to 
the  injury  of  the  bailor.  Common  carriers  and  innkeepers 
are  subject  to  special  rules. 

§28.  (3.)  By  act  of  bailor.— The  bailor's  power  to  ter- 
minate the  relation  depends  upon  the  nature  of  the  contract. 
In  bailments  at  will  and  in  bailments  for  his  sole  benefit,  the 
bailor  may  end  the  relation  at  any  time.  In  bailments  for  the 
benefit  of  the  bailee  for  an  indefinite  term,  there  must  be  a 
demand  by  the  bailor  and  a  reasonable  time  for  the  return 
of  the  chattel  by  the  bailee.  The  bailee's  rights  cannot  be 
wantonly  disregarded.  In  bailments  for  a  definite  time  or 
purpose,  the  bailee  may  hold  the  chattel  even  against  the 
bailor. 

§  29.     Bailee's  wrong. — The  bailee's  wrong,  it  is  usually 

held,  does  not  terminate  the  relation  but  gives  the  bailor  the 
right  to  do  so  at  any  time.  Thus,  the  use  of  the  chattel  in 
a  different  manner  or  for  a  different  purpose  from  that  agreed 
upon,  its  appropriation  or  sale  by  the  bailee,  his  refusal  to 
redeliver  it,  may  be  treated  by  the  bailor  as  ground  for  termi- 
nating the  bailment,  and  in  many  cases  for  suing  the  bailee 
in  trover  for  conversion. 


§28.      [— ]      Cobb    V.    Wallace,    5          §  "JO.       I— I  Green    v.    Hollings- 

Cold.    (Tenn.)   .539,  98  Am.  D.  435;  'north,   5   Dana  (Ky.)    173,   30   Am, 

Smith  V.  Niles,  20  Vt.  315,  49  Am.  D.    680;     [—1  Wentworth    v.    Me- 

D.  782 ;  Story,  Bailments  &  Carriers,  Duffiie,    48    N.  H.    402 ;     Schoulcr, 

§§   119,   210;   Schoulcr,  Bailments  &  Bailments  &  Carriers,  §§  56,  156. 
Carriers,  §  81. 

13 


^<  31-35  OF  BAILMENTS  IN  GENERAL. 

B.    By  Operation  of  Law. 

J;  30.  1.  By  changed  status  of  the  parties.— There  are 
cases  in  which  the  happening  of  some  event  so  affects  the 
performance  of  the  bailment  contract  as  to  terminate  the  re- 
lation by  operation  of  law.  In  other  cases  the  happening  of 
the  same  event,  though  not  ipso  facto  a  termination  of  the 
i-chition.  is  nevertheless  a  sufficient  cause  for  the  termina- 
ti<m  of  the  contract  by  one  of  the  parties. 

^  31.     Death. — The  death  of  either  bailor  or  bailee  will 

terminate  the  relation  unless  the  contract  is  of  such  a  nature 
that  it  can  be  performed  by  the  personal  representative  of 
the  deceased.  Thus,  the  hire  of  personal  services  about  a 
chattel  involves  a  personal  trust  that  ceases  at  the  death  of  the 
bailee.  And  death,  if  not  ipso  facto  a  termination  of  the  re- 
lation, is  usually  held  to  justify  either  party  or  his  repre- 
sentative in  terminating  it,  but  not  so  as  to  absolve  the  parties 
from  antecedent  liabilities  of  the  bailment. 

§  32.    Bankruptcy,  marriage,  insanity. — Any  change  in 

legal  status  of  either  party,  as  by  bankruptcy,  marriage  of 
the  woman  at  common  law,  insanity,  probably  terminates  the 
bailment  relation  as  it  does  that  of  agency,  at  least  so  far  as 
the  performance  of  the  bailment  purpose  depends  upon  the 
party  Avhose  status  is  thus  affected. 

^  33.  2.  Change  of  status  of  bailed  chattel. — If  the  bailee 
becomes  full  owner,  or  if  the  subject-matter  of  the  contract  is 
destroyed,  the  bailment  relation  at  once  ceases.  The  liability 
of  the  bailee  when  the  subject-matter  of  the  bailment  is  de- 
stroyed will  be  hereafter  considered. 

§  34.  Redelivery.— It  has  already  been  said  that  upon  ter- 
mination of  the  bailment  the  bailee  must  deal  with  the  chattel 
according  to  the  directions  of  the  owner,  upon  peril  of  liability 
for  loss  if  he  fails  to  do  so.  It  is  now  in  order  to  inquire  what 
i'  to  be  redelivered,  and  where  and  to  whom  the  redelivery  is 
to  be  made. 

§  35.     What  is  to  be  redelivered. — As  already  indicated, 

the  identical  thing  bailed  is  to  be  returned  in  its  condition  at 

§;J0.  Schoiilcr,  Biiilmenls  &  Car-  riers,  §§  277,  418,  419;  Schouler, 
rifii-s,  §§  .50,  ()1.  Bailments  &  Carriers,  §  156. 

§31.      Slory,    Bailments    &    Car-  §35.     Atkins  v.  Gamble,  42  Calif. 

14 


LEGAL  RESULTS  OF  THE  RELATION.  §§  36-38 

the  tt'rmination  of  the  bailment.  In  the  case  of  stocks  or 
bonds,  others  of  different  numbers  but  representing  the  same 
l)r()perty  may  be  substituted  for  the  stocks  or  bonds  bailed. 
In  addition  to  the  chattel  itself,  however,  the  bailee  is  bound 
to  return  all  increase  of  it,  such  as  the  young  of  animals  and 
dividends  and  interest  from  stocks  and  bonds.  If  the  chattel 
is  returned  in  an  injured  or  depreciated  condition,  the  bailee 
is  always  liable  for  such  loss  when  it  was  due  to  his  failure  to 
use  the  requisite  care. 

§  36.     Where  returned.— The  place  where  delivery  is  to 

be  made  is  to  be  gathered,  if  possible,  from  the  contract.  In 
the  absence  of  a  contract,  custom,  usage,  and  the  nature  of  the 
bailment  often  determine  the  place  of  delivery.  In  gratui- 
tous bailments  the  party  receiving  no  advantage  should  be 
especially  considered  and  his  convenience  consulted.  In  all 
bailments  there  is  a  natural  presumption,  in  the  absence  of 
other  indications,  in  favor  of  the  place  of  business  or  resi- 
dence of  the  bailor,  or  of  the  party  to  whom  he  has  directed 
delivery  to  be  made. 

§  37.    To   whom    redelivered.— The    bailment    contract 

usually  determines  whether  the  property  is  to  be  redelivered 
to  the  bailor  or  his  agent,  or  to  some  third  person.  In  the 
case  of  a  bailment  with  an  option  to  purchase  the  property 
may  be  retained  by  the  bailee. 

The  exercise  of  care,  however  great,  affords  no  excuse  for 
delivery  to  the  wrong  person.  All  bailees  must  at  their  peril 
deliver  to  the  proper  party.  Failure  to  do  so  amounts  to  con- 
version by  the  bailee,  even  though  he  may  have  acted  in  good 
faith,  and  so  does  refusal  to  deliver  to  the  rightful  claimant. 
In  case  of  change  of  residence  of  the  proper  party  the  bailee 
should  make  reasonable  efforts  to  discover  his  new  location 
and  in  case  of  his  death  delivery  should  be  made,  ordinarily, 
to  his  personal  representative. 

As  already  indicated,  a  bailee  cannot  set  up  against  his 

86,  10  Am.  R.   li82;    [— ]      Alien  v.  Plains  Co.  v.  R.  R.,  1  Gray   (Mass.) 

De'lauo,   55    Maine    113,   92   Am.   D.  263,  61  Am.  D.  423. 

573.   [_]    Krause  V.  Commomvealtli,  §37.       [— ]       Pulliam    v.    Burlin- 

93  Pa.  St.  418,  39  Am.  R.  762.  game,  81  Mo.  Ill,  51  Am.  R.  229; 

§  36_     I  _]     Esmay  v.  Fanning,  9  The   Idaho,   93   U.   S.   575,   sec   Sec. 

Barb.    (X.   Y.)    17();     |— 1    Norway  7,  (intc. 

15 


^  gg  OF  BAILMENTS  IN  GENERAL. 

bailor  th.-  claims  of  himself  or  of  any  other  parties,  but  he 
will  ahvays  be  protected  by  delivery  to  the  rightful  owner. 

J?  38.  Adverse  claims.— The  bailee  is  justified  in  de- 
livering' to  the  bailor,  even  when  he  is  not  the  owner,  unless 
he  has'notice  of  adverse  claims.  In  such  ease  he  should  notify 
the  bailor  and  give  him  opportunity  to. defend  against  such 
adverse'  claimants,  or  if  there  be  privity  between  the  bailor 
and  the  third  parties  the  bailee  may  require  them  to  inter- 
plead. 

;;  39.  Special  contract.— Finally,  it  is  important  to  notice 
that  tlie  parties  may  always  define  their  rights  and  liabilities 
by  special  contract,  unless  such  contract  is  illegal  or  con- 
trary to  public  policy.  A  contract  to  hire  property  for  an  il- 
legal purpose,  or  to  relieve  the  bailee  from  all  responsibility  for 
his  negligence  or  fraud  would  be  invalid.  But  the  terms  of 
any  legal  contract  entered  into  by  the  parties  will  govern 
their  relations  in  so  far  as  those  terms  are  clear  in  their  im- 
port. It  must  be  understood,  then,  that  the  foregoing  princi- 
ples are  within  the  above  limits  subject  to  enlargement  or 
retraction  by  the  contract  of  the  parties. 

§  38.  f— J  Pulliam  v.  Biuiiu-  Ball  v.  Liney,  48  N.  Y.  6,  8  Am.  E. 
game,  81   Mo.  Ill,  .51  Am.  R.  229;      .511.     Note  to  91  Am.  St.  E.  608. 


16 


PART  U. 
OF   ORDINARY    BAILMENTS. 

I.     OF  GRATUITOUS  BAILMENTS. 


CHAPTER  III. 
A.     OF  GRATUITOUS  SERVICES. 

§  40.     Classification.  §  47.     Involuntary    deposits. 

A.     Gratuitous  Services.  2.     Bights  and  duties  of  the 

41.  Deposits   and    mandates   com-  parties. 

pared.  *8.     Diligence. 

^  .  .,,      T    i-  49.     Same    care    as    of    one's 

42.     Comparison     with     Liatin 

own. 
depositum  and  mandatum.  ^q      Special  skill. 

43.  The     general     principles      of        51.     Facts    equally     within 

bailments  apply.  knowledge  of  both  parties. 

44.  Division  of  the  subject.  ^2.     Misfeasance  and  nonfeas- 

1.     Nature    of     deposits    and        ^^      „.  ,     ' 

.53.     Eight  to  use. 

mandates.  ^_     Termination   of  the   rela- 

45.  No  compensation.  tion. 

46.  Special  bank  deposits.  54.     Special  rules. 

§  40.     Classification. — There   are  two   classes  of   gratuitous 
bailments — 

A.  Gratuitous  services  by  the  bailee,  or  baihnents  for  the  sole 
benefit  of  the  bailor,  including' 

1.  Deposits,  which  are  gratuitous  bailments  of  goods 

for  custody  or  safe  keeping,  and 

2.  Mandates,  which  are  bailments  of  goods  for  the 

performance  of  some  service  upon  them  by  the 
bailee  gratuitously. 

B.  Gratuitous  loans  by  the  bailor,  which  is  the  Roman  com- 

niodatum,  a  bailment  of  a  chattel  for  use  by  the  bailee 
gratis. 


§  40.[— ]  Gray  v.  Merriam,  148  111.      179,  35  N.  E.  E.  810,  39  Am. 
172. 

2  17 


^•^  41-43  OF  GRATUITOUS  BAILMENTS. 

A.    Of  Gratuitous  Services. 

?;  41.  Deposits  and  mandates  compared.— The  bailor  who 
iiiake.s  a  deposit  is  <-alled  a  dcposilor,  his  bailee,  the  depositary. 
In  mandate.?  the  corresponding  parties  are  called  the  mandator 
and  oianddtarij. 

Formerly,  the  two  bailments  were  separately  treated.  The 
deposit  was  said  to  consist  in  custody,  the  mandate  in  feasance. 
But  in  fact,  both  custody  and  service  of  some  sort  are  in- 
volved in  each  bailment,  and  hence  the  obligations  of  the 
parties  are  subject  substantially  to  the  same  rules.  The  only 
distinction  is  one  of  emphasis.  In  deposits  custody  is  the 
chief  purpose,  feasance  is  incidental.  In  mandates  service  is 
primary,  custody  the  incident. 

^  42.     Comparison  with  Latin  depositum  and  mandatum. — 

The  term  deposit  is,  unfortunately,  one  of  varied  meanings. 
The  ordinary  or  general  bank  " deposit"  creates  the  relation 
of  debtor  and  creditor,  and  is  not  a  bailment  at  all.  What 
bankers  call  "special  deposits"  are  bailments,  but  only  those 
for  which  the  bank  charges  no  compensation  belong  to  the 
bailment  known  as  a  deposit.  The  word  is  derived  from  the 
Latin  depositum,  but  the  depositum  of  the  Roman  law  was  of 
broader  application,  and  involved  distinctions  of  no  conse- 
quence in  our  law.    • 

The  term  mandate  is  equally  indefinite  and  varied  in  its 
meaning.  See  the  word  ''mandate"  in  a  law  dictionary.  The 
Roman  mandatum,  from  which  our  word  is  borrowed,  includes 
any  gratuitous  agency,  bailment  or  other. 

§  43.  The  general  principles  of  bailments,  already  noted, 
are  applicable  to  gratuitous  bailments.  The  essentials  of  a 
contract  as  to  competent  parties,  assent,  and  subject-matter, 
call  for  no  special  notice  here.  As  already  seen  (§  18),  the 
consideration  in  gratuitous  bailments  is  the  detriment  to  the 
promisee,  who  by  the  undertaking  of  the  promisor  is  prevented 
from  securing  the  desired  benefit  at  the  hands  of  another. 

§  41.  Story,  Bailments  &  Car-  §  43.  [ — ]  Coggs  v.  Bernard,  2 
Tiers,  §  140.  Ld.  Eaymond  909,  1  Sm.  Lead.  Cas. 

§42.     Story,     Bailments     &     Car-     199. 
riers,   §§   44,   4.5,   84,   88;     Schouler, 
! 'ailments  &  Carriers,  §  26,  note. 

18 


OF    GRATUITOUS    SERVICES.  §§44-47 

;i  44.  Division  of  the  subject. — In  the  following  sections 
l)rinciples  which  apply  particularly  to  bailments  of  gratuitous 
services  will  be  considered  as  follows:  1.  The  nature  of  the 
relation.  2.  Its  resulting  rights  and  duties.  3.  Its  termina- 
tion. 

1.    Nature  of  Deposits  and  Mandates. 

^  45.  No  compensation. — It  is  the  absence  of  any  recom- 
pense, direct  or  indirect,  that  marks  this  class  of  bailments. 
Any  legal  benefit  to  the  promisor,  even  though  an  indirect  one, 
takes  the  bailment  out  of  this  class,  and  makes  it  a  mutual 
benefit  bailment.  It  is  not  strange,  therefore,  that  the  eases 
arising  in  this  class  of  bailments  are  comparatively  few. 

§  46.  Special  bank  deposits. — Banks  frequently  receive  for 
deposit  in  their  safes  boxes  or  packages  containing  the  money 
or  other  valuables  of  favored  individuals.  For  this  the  bank 
receives  no  compensation,  it  has  no  right  to  use  or  even  ex- 
amine the  contents,  and  upon  demand  of  the  depositor  must 
return  the  specific  valuables  in  bulk  as  they  were  deposited. 
These  special  deposits  form  no  part  of  the  bank's  regular 
business,  and  no  bank  officer  has  any  authority  to  bind  the 
bank  to  such  a  bailment  without  the  expressed  or  implied  as- 
sent of  the  directors.  It  is  settled  by  the  weight  of  authority 
that  where  a  cashier  or  other  officer  is  kno%vn  by  the  directors 
to  be  in  the  habit  of  receiving  such  deposits,  the  bank  is  a 
gratuitous  bailee  of  all  special  deposits  so  received.  The 
contract  is  not  ultra  vires  even  in  the  case  of  national  banks. 

§  47.  Involuntary  deposits  arise  when  through  flood  or 
other  disaster  goods  are  east  upon  the  land  of  one  not  their 
owner.  If  this  happens  without  fault  of  the  owner,  the  de- 
positary is  a  gratuitous  bailee  and  must  allow  the  owner  to 

§  45.     Compare     [ — ]    Newhall    v.  tional   Bank   v.   Graham,    100   U.   S. 

Paige,      10      Gray      (Mass.)      366;  699;    [— ]    Preston    v.   Prather,    137 

[_]    Preston  v.   Prather,   137  U.  S.  U.  S.  604,  11  Sup.  Ct.  162;  but  com- 

604;  First  National  Bank  V.  Graham,  pare  First   National  Bank  v.   Ocean 

100  U.  S.  699;  see  also  [— ]  Gray  v.  National   Bank,    60    N.    Y.    278,    19 

Merriam,  148  111.   179,   35  N.  E.  E.  Am.   R.   181.     See  also   Goodwin   v. 

810,  39  Am.  St.  E.  172;  Woodruff  v.  Ray,    108    Tenn.   614,    69   S.   W.    R. 

Painter,   150  Pa.  St.  91,   24  Atl.  E.  730,  91  Am.  St.  R.  761. 

621,  30  Am.  St.  R.  786.  §47.        See    Story,    Bailments    & 

§  46.     [—1     Foster  v.  Essex  Bank,  Carriers,  §  S3,  a. 
17  Mass.  479,  9  Am.  D.   168;    Na- 

19 


jj^  48-50  OF  GRATUITOUS  BAILMENTS. 

ivmove  the  <,^oods.  If  the  owner  was  at  fault,  however,  it 
woukl  seem  that  he  has  no  right  to  enter  and  remove  without 
reeonipensiuf,'  the  depositary,  but  the  latter  has  no  right  to 
use  or  appropriate  to  himself  the  goods  cast  upon  him. 

■2.     Ixights  and  Duties  of  the  Parties. 

^  48.  Diligence. — It  is  the  first  duty  of  the  bailee  to  take 
reasonable  care  of  the  bailed  chattel.  As  he  receives  no  bene- 
fit the  care  required  is  slight  diligence,  and  it  is  said  that  he 
is  liable  only  for  gross  negligence.  What  is  reasonable  care 
■\vill  depend  on  the  nature  and  value  of  the  bailed  chattel,  the 
circumstances  of  the  undertaking,  and  the  contract  of  the 
parties.  This  contract  may  enlarge  or  limit  the  liability  so 
as  to  make  the  bailee  an  insurer  or  free  from  any  liability  for 
less  than  negligence  amounting,  in  legal  effect,  to  fraud,  which 
no  contract  can  excuse. 

§  49.    Same  care  as  of  one's  own. — It  has  often  been 

suggested  that  if  the  bailee  takes  the  same  care  of  the  bailed 
goods  as  of  his  own  he  is  free  from  liability.  But  one  may 
take  risks  with  his  own  that  he  has  no  right  to  take  with 
another's  property.  Taking  such  care  of  the  bailed  goods  as 
of  one's  own  repels  a  presumption  of  gross  negligence,  but 
this  may  be  overcome  and  liability  fastened  upon  the  bailee, 
nevertheless,  by  showing  want  of  slight  diligence.  The  ques- 
tion is  not  one  of  the  care  exercised  by  an  individual  but  by 
a  class.  Slight  care  is  not  that  which  an  individual  may 
bestow  in  a  given  case,  but  which  men  of  a  class  are  wont  to 
bestow  in  such  a  case. 

§  50.     Special  skill. — It  has  been  held  that  one  holding 

§  48.    t — 1    Coggs  V.  Bernard,  2  Ld.  §  49.      [ — ]      Coggs  v.  Bernard,  2 

Eay.    909,    1    Sm.    Ld.    Cas.     199;  Ld.  Eay.  909,  1   Sm.  Ld.  Cas.   199; 

[ — ]  Foster  v.  Essex  Bank,  17  Mass.  First  National  Bank  v.  Graham,  79 

479,    9   Am.   D.   168;    [— ]    Gray   v.  Pa.      St.      106,      21      Am.      E.      49; 

Merriam,  148  111.  179,  35  N.  E.  E.  [— ]    Doorman  v.  Jenkins,   2  Ad.  & 

810,  39  Am.  St.  R.  172;   First  Na-  El.  256,  29  E.  C.  L.  80;    [— ]  Gray  v. 

tional   Bank  v.  Graham,   100   U.   S.  Merriam,  148  111.   179,   35  N.  E.  E. 

699;    r— ]    Preston   v.   Prather,   137  810,  39  Am.  St.  R.  172;   Conner  v. 

U.  S.  604,  11  Sup.  Ct.  162;  Jenkins  Winton,  8  Ind.  315,  65  Am.  D.  761; 

V.  Bacon,  111  Mass.  373,  15  Am.  E.  [— ]   Knowles  v.  Atlantic  etc.  E.  E. 

33;  Eddy  v.  Livingston,  35  Mo.  487,  Co.,  38  Me.  55,  61  Am.  D.  234. 

88  Am.  D.  122 ;   [— ]  Knowles  v.  At-  §  50.     [— ]     Gray  v.  Merriam,  148 

lantic  etc.  E.  R.  Co.,  38  Me.  55,  61  111.  179,  35  N.  E.  E.  810,  39  Am.  St. 
.\m.  D.  234. 

20 


OF    GRATUITOUS    SERVICES. 


§§51- 


himself  out  as  having  special  skill  must  exercise  such  skill  or 
he  will  be  liable,  even  though  he  receive  no  recompense  for  th«; 
service.  Want  of  skill  in  this  case  is  said  to  be  imputable  to 
gross  negligence. 

§  51.  Facts  equally  within  the  knowledge  of  both  part- 
ies.— And  it  is  said  that  if  the  loss  results  from  euuditioiis 
equally  within  the  knowledge  of  the  bailor  and  bailee  the 
former  cannot  maintain  an  action  against  the  latter.  Thus,  if 
the  character  and  habits  of  the  bailee,  or  the  place  where  the 
goods  are  to  be  deposited  are  known  to  the  bailor,  he  is  pre- 
sumed to  assent  to  such  conditions  and  is  estopped  from  set- 
ting up  any  loss  therefrom. 

§  52.  Misfeasance  and  nonfeasance. — While  the  detri- 
ment to  the  bailee  is  held  to  furnish  sufficient  consideration  to 
uphold  the  contract,  yet  the  law  does  not  recognize  this  detri- 
ment until  the  bailee  has  entered  upon  the  undertaking.  Until 
that  moment  the  bailor  is  still  at  liberty  to  secure  another  to 
do  the  service.  Accordingly  the  gratuitous  bailee  is  not  liable 
for  any  injury  arising  from  nonfeasance,  from  his  entire  fail- 
ure to  perform,  but  only  from  misfeasance,  from  his  defective 
performance  amounting  to  gross  negligence.  The  bailee  is 
liable  for  misfeasance  but  not  for  nonfeasance. 

§  53.  Right  to  use. — Any  advantageous  use  by  the  bailee 
would  make  the  relation  a  mutual  benefit  bailment.  Only 
such  use  as  is  incidental  to  the  proper  preservation  of  the 
thing,  as  exercise  of  a  horse,  is  allowed.  If  the  bailee  uses 
the  thing,  not  only  does  the  bailment  become  a  mutual  benefit 
bailment  demanding  of  the  bailee  its  larger  measure  of  dili- 
gence, but  if  the  use  be  unauthorized  the  bailee  becomes  abso- 
lutely liable  for  the  safety  of  the  chattel  and  is  responsible 
for  loss  to  it  arising  from  any  cause  whatever. 

R.  172;   [— ]  Steamboat  New  World  61  Am.  D.  234;  Parker  v.  Uuion  li-e 

T.    King,    16    How.     (U.    S.)     469;  and  Salt  Co.,  59  Kau.  626,  54  Pa<-.  R. 

[_]    Preston  v.  Prather,   137  U.  S.  672,  68  Am.  St.  R.  3S3. 

604;  Isham  v.  Post,  141  N.  Y.  100,  §52.      [— ]      Thorne    v.    Doas.    4 

35  N.  E.  R.  1084,  38  Am.  St.  R.  766;  Johns.    (N  Y.)    84. 

Eddy  V.  Livingston,  35  Mo.  487,  88  §53.       |— 1       Gray    v.     Merriam. 

Am.  D.  122;  Shielis  v.  Blackburn,  1  148  111.  179,  35  N.  E.  R.  810,  39  Am. 

H.  Bl.  158.  St.    R.    172;     I—]    Preston    v.    Pra- 

§51.      [— ]      Coggs  V.  Bernard,   2  ther,  137  U.  S.  604,  11  Sup.  Ct.  162; 

Ld.  Ray.   909,   1   Sm.   L.   Cas.   199;  Alvord    v.    Davenport,    43    Vt.    30; 

[—1  Knowles  v.  Railroad,  38  Me.  55,  Story,  Bailments  &  Carriers,  §  89. 

21 


§  54  OF  GRATUITOUS  BAILMENTS. 

3.    Termination  of  the  Relation. 

§  54.  Special  rules.— The  various  modes  of  terminating  a 
bailment  have  been  already  discussed  (§  24).  In  gratuitous 
baihnents  the  bailee  has  nothing  to  gain  by  continuing  the  re- 
lation. The  bailor,  therefore,  may  terminate  it  at  any  time, 
but  must  have  regard  for  the  convenience  of  the  bailee,  making 
demand  and  allowing  a  reasonable  time  for  the  bailee  to  make 
delivery.  The  same  privilege  of  terminating  the  relation  at 
■will  belongs  to  the  bailee,  unless  he  has  undertaken  the  cus- 
tody for  a  fixed  time  or  has  agreed  to  carry  to  a  definite  place, 
in  which  case  he  must  after  entering  upon  performance  com- 
plete it  or  he  is  liable  to  the  bailor  for  any  damage  due  to  his 
default.  Redelivery  must  be  made  to  the  proper  party  at  the 
bailee's  peril. 

§  54.     Winkley  v.  Foye,  33  N.  H.  St.  E.  761 ;    Story,  Bailments  &  Car- 

171,   66  Am.   D.   715;     Beardslee  v.  riers,   §   208-210;    Wear   v.   Gleason, 

Richardson,   11   Wend.    (N.   Y.)    25,  52   Ark.   364,   12   S.   W.   R.    756,   20 

25  Am.  D.  596;  Goodwin  v.  Ray,  108  Am.  St.  R,  186. 
Tenn.  614,  69  S.  W.  R.  730,  91  Am. 


22 


CHAPTER  IV. 
B.  OF  GRATUITOUS  LOANS. 

§  55.     Definition  of  commodatuni.  §  59.     Care. 

1.  Nature  of  the  relation.  ^^^-     better  cure  than  of  one's 

own. 

56.  Contract  necessary.  ^,      t.-  u^  ^ 

61.     Right  to   use. 

57.  No  recompense.  j      Termination   of   the   rchi- 

58.  Special  property  of  bailee.  tion. 

2.  Bights  and  duties  of  the        62.     Special   rules. 

parties.  63.     Eestoration  to  bailor. 

§  55.  Definition. — The  gratuitous  loan,  or  commodatum,  is 
the  baihnent  of  a  chattel  for  use  by  the  bailee  gratis. 

The  English  loan  includes,  beside  the  gratuitous  loan  for 
use,  the  loan  of  money  for  hire,  and  the  loan  of  goods  for  con- 
sumption, the  Latin  mutuum,  neither  of  which  is  a  bailment. 
The  word  "borrow"  is  also  used  in  the  three  senses.  In  the 
present  chapter  "loan"  and  "borrow"  must  be  understood  to 
refer  to  the  loaning  or  borrowing  of  a  chattel  for  use  by  the 
bailee,  or  borrower,  without  compensation  to  the  bailor,  or 
lender.  Following  the  classification  of  the  last  chapter,  we 
shall  consider :  1,  the  nature  of  the  relation ;  2,  its  rights  and 
duties,  and  3,  its  termination. 

1.    Nature  of  the  Relation. 

§  56.  Contract  necessary.— The  law  will  never  impose  upon 
the  owner  the  necessity  of  loaning  his  chattel  gratuitously, 
hence  gratuitous  loans  arise  only  from  contract.  Any  chattel 
which  would  not  be  consumed  in  the  use  may  be  the  subject 
of  a  loan. 

§  57.  No  recompense. — It  is  of  the  essence  of  this  bailment 
that  it  is  for  the  sole  benefit  of  the  bailee.  Any  legal  benefit 
derived  by  the  bailor  w^ould  make  the  relation  the  more  eom- 

§55.      [_]      Coggs  V.  Bernard,   L>  §57.       |  — 1       Thorno    v.    IVas.    4 

Ld.  Eaymond  909,  1  Sm.  Lead.  Cas.     .Johns.   (X.  Y.)   84. 
199. 

23 


§§  58-60  OF  GRATUITOUS  BAILMENTS. 

mou  mutual  benefit  bailmeut.  As  the  use  is  gratuitous  it  fol- 
lows that  there  cannot  be  an  executory  contract  for  a  loan, 
for  the  consideration  arises  only  when  the  undertaking  has 
been  entered  upon. 

§  58.  Special  property  of  bailee. — Whether  the  borrower 
has  a  special  property  in  the  thing  bailed  has  been  disputed. 
In  the  loan  at  will  the  right  of  the  bailee  would  seem  to  be 
too  precarious  to  amount  to  property.  But  when  the  loan  is 
for  a  definite  period  it  would  seem  that  the  lender  may  not 
terminate  it  before  the  expiration  of  that  period  or  he  will 
be  liable  to  the  bailee  for  any  resulting  damage.  No  reason 
is  apparent  for  denying  the  property  interest  of  such  a  bor- 
rower. The  borrower  may  maintain  trespass  or  trover  agaiust 
third  persons  who  interfere  with  his  possession  of  the  loan. 

2.    Bights  and  Duties  of  the  Parties. 

§  59.  Care. — The  borrower,  though  not  an  insurer  of  the 
goods,  is  held  to  the  highest  degree  of  care.  As  he  enjoys  their 
use  gratis,  it  is  but  fair  to  exact  of  him  the  diligence  of  the 
most  careful  men  in  the  conduct  of  their  own  affairs.  For 
even  slight  negligence  he  is  responsible  to  the  bailor  for  any 
damage  to  the  goods  caused  thereby. 

§  60.    Better   care  than   of  one's   own, — Whether  the 

borrower  is  liable  if  .he  saves  his  own  goods  from  peril,  such 
as  a  fire,  and  allows  the  borrowed  goods  to  be  destroyed  has 
been  much  argued.  It  has  been  said  that  the  goods  of  greatest 
value  should  be  saved  first,  but  value  is  only  one  condition 
and  not  always  the  controlling  one.  The  real  question,  as  sug- 
gested by  Judge  Story,  is  whether  the  borrower  has  been 
guilty  of  any  negligence.  The  position  of  the  chattels,  their 
weight,  bulk,  etc.,  are  often  determining  factors  in  deciding 
which  shall  be  rescued  first.  The  conditions  being  the  same, 
the  borrower  could  not  be  justified  in  saving  his  own  in  prefer- 
ence to  the  lender's  goods. 

§  58.      [— ]      Little  V.  Fossett,  34  v.  Schultz,  44  Mich.  529,  7  N.  W.  R. 

Me.  545,  56  Am.  D.  671.  225,     38     Am.     E.     280.       Compare 

§59.       [— ]      Green    v.    Hollings-  [— ]   Coggs  v.  Bernard,  2  Ld.  Ray- 
worth,   5  Dana    (Ky.)    173,   30  Am.  mond,  909,  1  Sm.  Lead.  Gas.  199. 
D.   680;     [— ]    Wilson  v.  Brett,   11  §60.    Story,  Bailments  &  Carriers, 
Mees  &  W.  113;    Stewart  v.  Davis,  §  245-251. 
31  Ark.  518,  25  Am.  R,  576;    Bellcr 

24 


OF  GRATUITOUS  LOANS.  §|  gi.GS 

§  61.  Right  to  use. — Use  is  the  f,nst  of  this  baihiieiit,  and  the 
bailee  has  the  right  to  use  the  chattel  in  accordance  with  the 
terms  of  the  bailment  contract.  A  slight  departure  from  the 
bailment  purpose  is  at  the  peril  of  the  bailee  and  makes  him 
absolutely  liable  for  any  damage  to  the  property.  There  is 
even  greater  reason  why  the  borrower  should  be  strictly  con- 
fined to  the  contemplated  use  of  the  chattel  than  exists  in 
the  case  of  other  bailees.  So  for  any  fraud  in  procuring  the 
loan  the  bailee  is  liable. 

3.     Termination  of  iltc  Bailment. 

§  62.  Special  rules. — Unless  the  lending  be  for  a  definite 
period  or  for  a  specified  purpose,  it  would  seem  reasonable 
that  the  bailor  should  be  able  to  terminate  the  relation  at 
will.  It  has  been  suggested  that  he  must  not  do  this  so  as  to 
cause  damage  to  the  bailee,  but  justification  of  such  a  rule  is 
difficult  in  the  absence  of  compensation  or  of  any  agreement 
for  a  definite  time  or  purpose,  at  least  unless  he  flagrantly 
disregards  the  needs  of  the  borrower.  If,  however,  the  loan 
was  expressed  to  be  for  a  certain  period  or  purpose,  the  bor- 
rower has  the  right  to  retain  the  chattel  until  the  expiration 
of  the  time  or  the  accomplishment  of  the  purpose,  when  it  be- 
comes his  duty  to  restore  it. 

§  63.  Restoration  to  bailor. — Restitution  must  be  made  to 
the  bailor  even  when  he  is  not  the  owner  of  the  thing.  Own- 
ers have  sometimes  attempted  to  recover  property  from  the 
wrongful  possession  of  another  by  borrowing  it  and  them  re- 
fusing to  redeliver.  But  this  is  disputing  the  bailor's  title, 
which  the  bailee  may  never  do,  except  where  he  has  yielded 
to  title  paramount  in  some  third  person.  The  borrower  must 
restore  the  thing  before  he  can  set  up  any  claim  in  himself. 

§  61.       [— ]       Green    v.    Hollings-  76  Am.   D.   315 ;    Root  v.  Chandler, 

worth,   5   Dana    (Ky.)    173,   30  Am.  10  Wend.    (N.  Y.)    110,   25  Am.  D. 

D.     680;      Seller     v.     Schultz,     44  546;    Clapp  v.  Nelson,  VI  Tex.  370, 

Mich.  529,  7  N.  W.  R.  225,  38  Am.  62  Am.  D.  530. 

R.   280;    Stewart  v.  Davis,   31   Ark.  §63.     Simpson   v.   Wrenn,   50   111. 

518,  25  Am.  R.  576.  222,  99  Am.  D.  511;     [— ]   PulUam 

§  62.       [— ]       Pulliam    v.    Burlin-  v.  Burlingame,  81  Mo.  Ill,  51  Am. 

game,  81  Mo.   Ill,  51   Am.  R.  229;  R.  229. 
Walker   v.   Wilkinson,    35  Ala.   725, 


L') 


II.     OF  MUTUAL  BENEFIT  BAILMENTS. 

CHAPTER  V. 

CLASSIFICATION  AND  GENERAL  PRINCIPLES. 

§  G4.     Classes     of     inutuiil     benefit  2.     Eights  and  duties  of  the 

bailments.  parties. 

1.    Nature  of  the  relation.  §  67.     Care. 

65.  Eecompense.  3.     Termination   of  the   rela- 

66.  Custody  and  service.  tion. 

68.     Not  precarious. 

§  64.  Classes. — Bailments  for  the  mutual  benefit  of  bailor 
and  bailee  include — 

A.  Pignus,  or  pledge,  and 

B.  Locatio,  or  hiring.    Bailments  for  hire  are — 

1.  Locatio  rei,  the  hired  use  of  a  thing,  and 

2.  Locatio  operis,  hired  services  about  a  thing. 

a.  Ordinary  bailments  for  hire. 

(1)  Locatio    custodiae,  hired  custody  of  a 
thing. 

(2)  Locatio   operis  faciendi,  hired  services 
upon  a  thing. 

(3)  Locatio    operis    mercium    veliendarum, 
hired  carrying  of  a  thing. 

b.  Extraordinary   bailments   for   hire,    w^hich    are 
the  bailments  entered  into  by — 

(1)  Innkeepers  as  to  the  baggage  of  their 

guests,  and 

(2)  Common  carriers  of  goods. 

We  shall  also  have  to  consider  the  relations  of  innkeepers 
to  the  persons  of  their  guests  and  of  common  carriers  to  their 
passengers,  which  are  not  bailment  relations,  but  are  gov- 
erned by  similar  principles.  In  the  present  chapter  will  be 
considered  some  fundamental  distinctions  applying  to  all  mu- 
tual benefit  bailments,  as  regards:  1,  the  nature  of  the  rela- 
tion ;  2,  its  rights  and  duties,  and  3,  its  termination. 

2G 


CLASSIFICATION     AND     GENERAL     PRINCIPLES.  §§  65-67 

1.    The  Nature  of  the  Relation. 

§  65.  Recompense. — It  is  characteristic  of  this  bailment 
that  there  is  conipensation  to  the  promisor.  This  may  be  slight, 
indirect  or  incidental,  but  it  must  amount  to  a  legal  benefit. 
Thus,  if  A  lets  his  horse  to  B,  nominally  gratis,  but  really  on 
consideration  that  B  will  furnish  feed  and  care  for  the  horse, 
the  bailment  is  not  a  commodatum,  but  a  local io.  So  if  B 
agrees  to  keep  A's  horse  gratis,  but  uses  it  for  his  own  pur- 
poses, beyond  the  exercise  needed  to  maintain  the  horse  in 
good  condition,  B  is  not  a  depositary,  but  a  bailee  for  hir(», 
the  bailment  is  a  locatio  rei,  both  bailor  and  ])iiile('  dci-ivc  ;i 
legal  benefit. 

§  66.  Custody  and  services. — Distinctions  have  often  been 
attempted  between  bailments  for  custody  and  for  serv- 
ices. There  is  no  such  absolute  distinction.  The  leading 
purpose  in  some  bailments  is  custody,  in  others  services,  but 
in  all  custody  is  necessary  and  some  services  as  well.  The 
pledgee  has  custody  primarily  but  must  perform  such  serv- 
ices as  are  needed  to  preserve  the  chattel,  and  the  workman 
employed  primarily  to  repair  a  chattel  must  incidentally  keep 
it  in  his  custody.  The  real  question  of  importance  is,  not  was 
it  a  bailment  for  custody  or  for  services,  but  has  the  bailee 
fulfilled  with  the  required  diligence  the  bailment  purpose, 
both  as  regards  custody  and  services. 

2.     Rights  and  Duties  of  the  Parties. 

§  67.  Care. — In  ordinary  mutual  benefit  bailments  the  dili- 
gence demanded  of  the  bailee  is  ordinary  care  in  view^  of  all 
the  conditions.  What  this  is  has  already  been  explained  in 
general  (§§  15,  16),  and  will  later  be  more  specifically  illus- 
trated. 

In  extraordinary  mutual  benefit  bailments  exceptional  care 
is  required  amounting,  as  will  later  appear,  in  the  case  of  inn- 
keepers and  of  common  carriers  of  goods  and  baggage  to  in- 
surance against  losses  to  the  goods  while  in  the  hands  of  the 
bailee. 

§  65.  [— ]  Newhall  v.  Paige,  10  lain  v.  Cobb,  32  la.  161,  Vigo  Agri- 
Gray  (Mass.)  366;  Woodruff  v.  cultural  Soeioty  v.  Bruinfiel,  lOiMiid. 
Painter,  150  Pa.  St.  91,  24  Atl.  R.  146,  1  N.  E.  R.  382,  52  Am.  R.  657. 
621,  30  Am.  St.  R.  786;    Chamber- 

27 


v;  (3g  OF  MUTUAL  BENEFIT  BAILMENTS. 

3.     The  Termination  of  the  Relation. 

^  68.  Not  precarious.— Mutual  benefit  bailments  are  not 
oft  mi  at  will.  Each  party  gives  value  to  the  other  and  there- 
by acquires  legal  rights  of  a  substantial  nature  which  the 
other  is  bound  to  respect.  The  relation,  therefore,  is  not  to 
be  lightly  terminated,  either  by  one  of  the  parties  or  by  oper- 
ation of  law,  until  the  time  has  expired  or  the  purpose  has 
been  accomplished.  Subject  to  these  conditions,  the  relation 
may  be  terminated  as  has  been  previously  pointed  out  (§§  24- 
38). 

I  68.      [—1      Cobb   V.   Wallace,   5  Cold.  (Tenn.)  539,  98  Am.  D.  435. 


28  / 


CHAPTER  VI. 


A.    PIGNUS,  OR  PLEDGE. 


§  69.     Definition  of  pledge. 

/.     Nature  of  the  relation. 

70.  Bailment   the  incident. 

71.     The  pledge  contraot. 

72.  Distinction     between     pledge, 

chattel   mortgage   and   lien. 

73.     Intention   governs. 

74.  Subject  matter. 

75.     Incorporeal  property. 

76.     Corporate   stock. 

77.     Exceptions. 

78.  Delivery. 

79.  The  obligation  secured. 
SO.     Limitations. 

^.     Bights  and  duties  of  the 
parties. 

81.  Custody. 

82.  Profits  and  expenses. 

83.  Right  to  use. 

84.  Assignment  by  the  pledgee. 

85.     Negotiable  instruments. 

86.     Corporate   stock. 

87.     Rights   of  pledgee. 

88.     Bills     of     lading,     ware- 
house receipts. 

89.  Care. 

90.  Proceeds  of  collateral. 

91.  Conversion  by  pledgee. 

92.     The     measure     of     dum- 

ases. 


■  93.     Pledgor  warrants  his  title. 

94.  Property  of  pledgor. 

3.     Termination  of  the  pledge. 

95.  Classification. 

A.     Termination  by  act  of  the 

parties. 
1.     By  act  of  the  pledgor. 

96.  (1)     Pull   performance. 

97.  (2)     Default   of   pledgor. 

98.     Remedies  of  the  pledgee. 

99.     —a.     Suit  on  the  debt. 

b.     Exercise  power  of 
sale. 
100.     (a)     Sale     at     com- 
mon law. 

101. ^Choses    in    action. 

202.     (b)     Sale   in    equity. 

103.     (f)     Special  con- 

tract. 

J04.     (d)     Statutory    sale. 

J  05.     ^Equitable     principles 

apply. 
10(5 Equity     of     redemp- 
tion. 
2.    By  act  of  the  pledgee. 
107.     (1)     Termination  by  consent 

of  pledgee. 
j()8.     (2)     Wrong  of  pledgee. 
109.     Redelivery. 


S69.  Definition.-A  pignus,  or  pledge,  is  a  bailment  to 
secure  the  perform^uice  of  an  obligation,  with  power  of  sale 
in  case  of  default. 


§  69      [_i     Coggs  V.  Bernard,  2 
Ld.  Raymond  909,  1  Sm.  Lead.  Cas. 


199.       [_]     Stearns     v.     Marsh,     4 
Den\o   (N.  Y.)  227,  47  Am.  D.  248; 


29 


^'^  70-72  OF  MUTUAL  BENEFIT  BAILMENTS. 

Pawn,  pledge,  collateral  security,  are  words  of  varying  de- 
grees of  respectability  designating  essentially  the  same  sort 
of  transaction.  Whether  the  pawnor  or  pledgor  deals  with 
the  pawnee  or  pledgee  under  the  historic,  and  sometimes  un- 
savory, name  of  pawnbroker,  or  with  the  modern  collateral 
security  bank,  or  the  great  loan  and  security  corporations, 
or  the"  banks  that  furnish  in  support  of  commercial  enter- 
prises vast  sums  whose  repayment  is  secured  by  the  deposit 
of  all  sorts  of  personal  property,  the  legal  relations  of  the 
parties  are  subject  to  the  same  rules. 

1.    The  Nature  of  the  Belation. 

§  70.  Bailment  the  incident.— A  pledge  differs  from  other 
bailments  in  that  the  bailment  is  secondary,  a  mere  incident 
to  the  primary  contract  the  performance  of  which  is  secured 
by  the  pledge.  This  primary  contract  is  usually  an  undertak- 
ing to  pay  a  debt,  but  it  may  be  any  other  engagement. 

§  71.  The  pledge  contract. — The  pledge  is  first  a  con- 
tract and  second  a  bailment,  and  the  general  principles  before 
referred  to,  competency  of  parties,  consideration,  mutuality, 
delivery,  etc.,  apply  to  the  pledge.  An  agent  may  be  author- 
ized to  pledge  the  property  of  his  principal,  a  partner  may 
pledge  the  partnership  goods  to  secure  a  partnership  debt, 
but  not  his  personal  engagement,  and  a  corporation  may 
pledge  its  corporate  property  to  secure  the  performance  of 
an  obligation  not  ultra  vires,  subject  to  the  usual  restrictions 
of  agency,  partnership,  and  corporate  powers. 

;;  72.    The   distinction  between  pledge,    chattel   mortgage, 

and  lien  often  becomes  important  because  of  different  meth- 
ods of  applying  the  security  to  extinguish  the  debt.  The 
chief  distinction  in  law  between  the  pledge  and  mortgage  is 
one  of  title.     The  pledgee  secures  only  a  special  property  ac- 

[— ]    Hall   V.   Page,   4   Ga.   428,   48  Ala.  194,  28  So.  E.  603,  85  Am.  St. 

Am.  D.  235;   Brewster  v.  Hartley,  37  K.  21;    [ — ]  Geilfuss  v.  Corrigan,  95 

Calif.  15,  99  Am.  D.  237.  Wis.  651,  70  X.  W.  E.  306,  60  Am. 

§70.     See  49  Am.  D.  730,  uote.  St.   E.   143;     Tannahill  v.   Tuttle,   3 

§71.     Shaw  V.  Spencer,  100  Mass.  Mich.   104,  61  Am.  D.  480;   Bryson 

382,  97  Am.  D.  107.  v.  Eayner,  25  Md.  424,  90  Am.  D.  69 ; 

§  72.     Lucketts  v.  ToAvnsend,  3  Tex.  Gilmer  v.  Morris,  80  Ala.  78,  60  Am. 

119;  49  Am.  D.  723;    [— ]  Americau  E.  85 ;   Wright  v.  Eoss,  36  Calif .  414. 

Pig  Iron,  etc.,   Co.  v.   German,   126 

30 


PIGNUS.  OR  PLEDGE.  |§  73.74 

cDiiipauiod  by  possession;  the  mort^a^ee  aerjuires  at  once  the 
legal  title  -with,  or  more  often  without,  possession,  subject  to 
be  defeated  upon  performance  of  the  condition.  The  title  of 
the  mortgagee  becomes  absolute  at  law  upon  breach  of  tho 
condition :  the  title  of  the  pledgee  never  becomes  absolute, 
but  upon  default  he  acquires  a  power  of  sale.  Like  the 
pledgee,  the  lien-holder  has  a  special  property  and  possession 
but  he  has  no  power  of  sale. 

The  mortgage,  pledge,  and  lien  are  alike  in  that  they  are 
intended  as  security  for  a  debt  and  are  in  equity  subject  to 
redemption  upon  payment  of  the  debt,  and  it  has  been  held 
that  the  tAvo  forms  of  security,  pledge  and  mortgage,  may  be 
combined  in  one. 

§  73.     Intention  governs. — In  construing  such  contracts 

courts  look  to  the  intention  of  the  parties.  This,  if  clearly 
apparent,  governs,  rather  than  any  name  applied  by  the  par- 
ties themselves.  Thus,  a  bill  of  sale,  a  transfer  of  stock,  an 
assignment  of  an  incorporeal  chattel,  have  been  regarded  as 
pledges  or  mortgages  where  other  writings  or  the  conduct 
of  the  parties  made  it  clear  to  the  court  that  such  was  their 
intention.  If  the  debt  be  secured  b.v  delivery  of  possession 
of  the  chattel,  the  law  prefers  to  regard  the  transaction  as  a 
pledge  rather  than  a  mortgage. 

§74.  Subject-matter. — "It  has  been  doubted  whether  in- 
corporeal things  like  debts,  money  and  stocks,  etc.,  which  can 
not  be  manually  delivered,  were  the  proper  subjects  of  a 
pledge.  It  is  noAv  held  that  they  are  so :  and  there  seems  to  be 
no  reason  why  any  legal  or  equitable  interest  whatever  in  per- 
sonal property  may  not  be  pledged,  provided  the  interest  can 
be  put,  by  actual  delivery  or  by  written  transfer,  into  the  hands 
or  within  the  power  of  the  pledgee. ' ' 

Property  not  yet  in  existence,  strictly  speaking,  cannot  be 
pledged,  but  a  contract  of  pledge  is  valid  and  when  the  prop- 
erty comes  into  existence,  and  the  debtor  takes  possession,  his 

§73.     f_]     Wilson  V.  Little,  2  X.  Y.  443,  51   Am.  D.  307;     [—1    Hall 

Y.  443,  51   Am.  D.  307 ;    McCoy  v.  v.  Page,  4  Ga.  428,  48  Am.  D.  'ISr, ; 

Lassiter,   95   N.   C.   88;   British   Co-  Brewster  v.  Hartley,  37  CaUf.  15,  99 

lumbia  Bank  v.  Marshall,  8  Sawyer  Am.    D.    237.      See   also    22    Am.    & 

(U.    S.)    297;     Wright    v.    Eoss,    36  Eng.  Eucyc.  of  Law  846,  and  cases 

CaHf.  414.  cited. 

§  74.     [—1     Wilson  v.  Little,  2  X. 

31 


S5  75-77  01''  MUTUAL  BENEFIT  BAILMENTS. 

rights  as  pledgee  immediately  attach.  Thus,  future  crops,  the 
increase  of  animals,  and  products  of  manufacture  may  be 
contracted  in  pledge. 

And  property  by  statute  exempt  from  execution  may,  never- 
theless, be  pledged,  just  as  it  may  be  mortgaged  or  sold.  So 
one  having  a  special  property  in  chattels  may  pledge  his 
interest,  and  with  the  owner's  consent  one  may  pledge  the 
property  of  another. 

§75.    Incorporeal  property  is  pledged  by  delivery  of 

the  paper  which  represents  the  property.  This  should  be  ac- 
companied by  written  assignment  or  indorsement,  but  it  has 
been  held  that  this  is  not  necessary,  and  manual  delivery  of 
a  promissory  note,  bill  of  lading,  warehouse  receipt,  policy  of 
insurance,  or  savings-bank  book,  with  the  intention  of  pledg- 
ing the  property  evidenced  thereby,  is  an  effectual  pledge, 
vesting  an  equitable  interest  in  the  pledgee. 

§  76.  Corporate  stock. — Subject  to  the  liens  and  privi- 
leges imposed  upon  it  by  law,  corporate  stock  may  be  and 
frequently  is  offered  as  collateral  to  secure  debts.  This  is 
usually  done  by  a  written  transfer  of  title  which,  like  the 
delivery  of  possession,  affords  the  evidence  of  the  pledgee's 
special  property  in  the  chattel  pledged.  To  make  complete 
transfer  of  the  shares  mere  delivery  of  the  stock  certificate  is 
not  enough.  The  by-laws  of  corporations  usually  require,  in 
addition  to  the  written  assignment,  a  transfer  of  title  on  the 
books  of  the  company;  but  this  does  not  deprive  the  pledgor 
of  his  general  property  in  the  stock  nor  of  his  interest  in  the 
corporate  funds. 

§  77.    Exceptions. — For  reasons  of  public  policy  the  law 

forbids  the  pledging  of  pensions  and  the  pay  of  soldiers  and 
sailors.  And  our  national  banks  are  forbidden  to  accept  their 
own  stock  as  security  for  a  loan,  unless  it  be  necessary  to 

§  75.     [_]     Wilson  v.  Little,  2  N.  Hartley,  37  Calif.  15,  99  Am.  D.  237. 

Y.  443,  51  Am.  D.  307 ;     [— ]   Geil-  §  76.     [— ]     Wilson  v.  Little,  2  N. 

fuss  V.  Corrigan,  95  Wis.  651,  70  N.  Y.  443,  51  Am.  D.  307;    Brewster  v. 

W.  E.  306,  60  Am.  St.  R.  143 ;    Grain  Hartley,  37  Calif.  15,  99  Am.  D.  237. 

V.   Paine,   4   Cush.    (Mass.)    483,   50  §77.      Merchants'    Bank   v.    Hall, 

Am.   D.   807;     Collins   v.   Dawley,   4  83    N    Y.    338,    38    Am.    E.    434; 

Colo.  138,  34  Am.  R.  T2;    White  v.  Schoulcr,      Bailments      &      Carriers, 

Phelps,    14   Minn.    27,    100    Am.    D.  §  177. 
190.       But     compare     Brewster     v. 

32 


PIG  N  us,  OR  PLEDGE.  |§  7g.S0 

secure  a  debt  already  contracted  in  good  faith.  By  loans  on 
such  security  the  assets  of  a  bank  might  be  seriously  im- 
paired. 

i;  78.  Delivery,  actual  or  constructive,  is  vital  to  a  good 
pledge.  As  has  before  appeared,  this  may  be  manual  delivery 
of  the  property  or  of  the  evidence  of  the  property,  or  con- 
structive delivery.  Delivery  to  a  third  person,  who  holds  pos- 
session as  agent  of  the  pledgee,  is  sufficient.  In  every  case 
there  should  be  such  change  of  possession  and  indications  of 
ownership  as  conditions  permit.  For  the  protection  of  the 
pledgee  against  third  persons  having  claims  again.st  the 
pledgor,  it  is  of  prime  importance  that  the  property  be  placed 
beyond  the  control  of  the  pledgor. 

5J  79.  The  obligation  secured  by  the  pledge  may  be  the 
payment  of  money  or  the  performance  of  any  other  legal  en- 
gagement. The  debt  secured  may  be  present,  past  or  future, 
absolute  or  conditional,  one's  own  or  that  of  another;  it  may 
include  many  debts,  a  single  debt  or  any  part  of  a  debt:  the 
security  may  be  for  obligations  nov/  outstanding,  or  be  a  con- 
tinuing security  against  debts  as  they  may  arise. 

However,  if  the  debt  be  illegal  the  pledge  is  invalid:  thr 
law  will  aid  neither  party,  but  will  leave  them  where  it  finds 
them.  Neither  can  recover  against  the  other  if  he  must  set 
up  the  illegal  contract  to  do  so. 

§  80.     Limitations. — But   the   pledge   secures   only    the 

debt  for  which  it  was  pledged  and  can  not  be  held  as  security 
for  other  indebtedness,  nor  for  a  different  or  greater  security 
than  was  intended. 

The  pledge  does  secure  the  performance  of  the  whole  and 
every  part  of  the  obligation,  and  no  part  of  the  pledge  can 
be  reclaimed  by  the  pledgee  until  the  entire  engagement  is 
performed. 

§78.      [_]      Geilfuss  v.  Corrigan,  Boyd,    44    Md.   47,    2-J    Am.    R.    35; 

95   Wis.   651,   70   X.   W.   R.   306,   60  Merchants'  Bank  v.   Mall,  S3  N.  Y. 

Am.  St.  R.  143;    Brewster  v.  Hart-  338,  38  Am.  R.  434. 

ley,  37  Calif.  15,  99  Am.  D.  237,  22  §  80.      Ball    v.    Stanley,    5    Yerp. 

Am.    &    Eng.    Encyc.    of    Law,    857,  (Tenn.)      199,     26     Am.     D.     2(53; 


858. 


— 1      ]\Iasonic     Savings     Bank 


§79.      Third    National    Bank    v.     Baugs's  Adm'r,  84  Ky.  135,  4  Am. 
3  33 


^  $  81-83  <^1^  MUTUAIi  BENEFIT  BAILMENTS. 

2.     li'i(jlils  and  Did  its  of  the  Parties. 

^  81.  Custody.— Tlu'  first  right  of  the  pludgeci  is  exclusive 
possession  of  the  thing  pledged.  This  right  is  good  against 
all  the  world,  including  the  pledgor,  and  continues  not  only 
during  the  time  for  which  it  was  pledged,  but  until  the  debt 
is  fully  satisfied.  To  vindicate  his  right  the  pledgee  may 
maintain  replevin  against  anyone  Avho  deprives  him  of  his 
possession;  or  he  may  recover  against  his  pledgor  his  dam- 
ages, and  against  other  disseisors  trover  for  the  full  value  of 
the  chattel,  holding  the  surplus  beyond  his  own  interests  in 
trust  for  the  pledgor. 

§  82.  Profits  and  expenses. — The  natural  profits  of  the 
pledge  while  retained  by  the  pledgee  become  part  of  the 
pledge  security  and  must  be  used  to  reduce  the  debt.  Such 
are  the  young  of  animals,  milk  from  cows,  and  dividends 
from  stock,  if  the  stock  stands  in  the  name  of  the  pledgee. 

The  exi)enses,  too,  reasonably  necessary  for  the  proper  pres- 
ervation of  the  pledge,  must  be  borne  by  the  pledgee,  who 
may,  of  course,  look  to  the  pledgor  for  reimbursement  before 
the  pledged  goods  can  be  reclaimed.  Profits  become  part  of 
the  pledged  property,  expenses  part  of  the  debt  secured. 

§  83.  Right  to  use. — The  pledgee  has  no  right  to  use  the 
property  pledged  to  its  injury.  The  old  cases  allow  him  such 
use  of  it  as  is  not  detrimental  thereto,  but  the  modern  view 
is  that  he  has  no  right  to  use  it,  further  than  is  needful  for 
its  proper  care,  unless  the  contract  of  pledge  is  such  that  the 
owner's  consent  may  be  fairly  inferred.  Wrongful  use  does 
not  terminate  the  pledge,  but  makes  the  pledgee  absolutely 
liable  for  any  resulting  injury  to  the  property. 

St.    E.    197;     Collins    v.    Dawley,    4  30  Am.  D.  689;  Plueker  v.  Teller,  174 

Colo.  138,  34  Am.  K.  72;    Merchants'  Pa.  St.  529,  34  Atl.  E.  208,  52  Am. 

Bank  v.  Hall,  83  N.  Y.  338,  38  Am.  St.  E.  825 ;    [— ]  Allen  v.  Delano,  55 

E.  434.  lie.  113,  92  Am.  D.  573. 

§  81.      [— ]      Hall  V.   Page,  4  Ga.  §  83.      [— ]      Stearns  v.   Marsh,   4 

428,  48  Am.  D.   235;     Treadwell   v.  Denio   (N.  Y.)   227,  47  Am.  D.  248, 

Davis,  34  Calif.  601,  94  Am.  D.  770;  22  Am.  &  Eng.  Eneyc.  of  Law  864; 

Adams  v.  O'Connor,  100  :\rass.  515,  Schonler,     Bailments    and    Carriers, 

1  Am.  E.  137.  §§  211,  212.     Compare  [— ]  Coggs  v. 

§  82.     r— ]     Honton  v.  Holliday,  2  Bernard,  2  Ld.  Eayraond  909,  1  Sm. 

Murph.  (X.  C.)   Ill,  5  Am.  D.  522;  Lead.  Cas.  199. 
!--elliek  v.  Mnnson,  2  Aik.  (Vt.)  150; 

34 


PIGNUS,   OR   PLEDGE.  §§  y4.ytj 

§  84.  Assignment  by  the  pledgee. — The  pledge  is  an  inci- 
dent of  the  debt  and  may  be  assigned  with  it.  The  pledgee 
may  sell,  assign,  or  pledge  all  his  interest  in  the  pawn  without' 
aft'oeting  the  securitj'.  His  assignee  or  pledgee  acquires  his 
title,  but  no  more.  The  usual  exception  exists  in  the  case  of 
negotial)le  instruments  taken  bona  fide  in  the  course  of  trade, 
and  of  other  property  if  the  pledgor  had  clothed  the  pledgee 
Anth  apparent  authority,  or  with  the  indicia  of  ownership. 

The  assignment  of  the  debt  should  be  accompani('*d  by  a 
transfer  of  the  pledge.  If  it  is  not,  the  assignee  will  still  have 
an  equitable  interest  in  the  pledge  which  he  can  enforce 
against  all  except  an  innocent  holder. 

§  85.  —Negotiable  instruments. — The  pledgee  taking  ne- 
gotial)le  instruments  bona  fide,  iov  value  as  security  for  a  debt, 
takes  them  free  from  equities,  like  any  other  transferee,  and 
may  acquire  a  better  title  than  his  pledgor.  Whether  a  pledge 
to  secure  a  pre-existing  debt  is  a  transfer  for  value  is  in  dis- 
pute, but  the  weight  of  authority  is  with  the  rule  of  tho 
United  States  Supreme  Court  to  the  effect  that  takinjr  se- 
curity for  a  pre-existing  debt  constitutes  the  pledgee  a  holder 
for  value. 

The  courts  that  deny  this  admit  that  there  is  value  if  the 
pledgee,  when  taking  the  negotiable  security,  gives  up  any 
right.  Thus,  a  pledgee  is  a  holder  for  value  if  he  accepted 
the  securities  in  payment  of  a  pre-existing  debt,  or  surren- 
dered other  securities,  or  extended  the  time  for  payment,  or 
forebore  to  sue.  The  fact  that  one  is  an  accommodation  in- 
dorser  is  no  defence  against  the  pledgee. 

§  86.  Corporate  stock. — Stock  certificates  are  not  ne- 
gotiable instruments.  Hence,  unless  the  OAvner  had  clothed 
him  with  the  muniments  of  title,  the  pledgor  can  give  his 
pledgee  no  better  title  than  he  himself  had.  As  to  the  parties 
themselves,  and  others  charged  with  knowledge  of  the  transac- 
tion, a  pledge  by  delivery  of  the  stock,  accompanied  by  an 
assignment  and  a  power  of  attorney  to  make  tht^  transfer  on 
the  books  of  the  corporation,  is  effectual  even  whovo  the  by- 

§  84.    Bailey  v.  Colby,  34  N.  H.  29,  of   Swift    v.    Tyson,    IG    Peters    (U. 

66  Am.   D.   752;     Homer  v.  Savings  S.)    1,    and    Bay    v.    Cod.lingtor.    •' 

Bank,  7  Conn.  478.  .Tohns.  Ch.  (N.  Y.)  54,  20  Johnf--.  6:57. 

§  85.     Compare  the  leading  cases 

35 


<<87-«i)  OF  MUTUAL   BENEFIT   BAILMENTS. 

laws  of  the  corporation  require  a  transfer  on  its  books.  But 
as  to  the  corporation  and  innocent  third  persons,  transfer  on 
the  ])ooks  is  necessary. 

jc  87.     Rights  of  pledgee.— The  pledgee,  under  his  power 

of  attorney,  may  compel  a  transfer  to  him  on  the  books  of 
the  corporation,'  after  which  he  has  the  right  to  vote  the 
stock  and  collect  the  dividends,  applying  them  to  a  reduction 
of  the  debt  secured.  If  he  appears  on  the  books  as  owner  of 
the  stock,  he  not  only  acquires  the  rights  but  assumes  the 
liability  of  a  stockholder. 

As  between  the  pledgor  and  pledgee,  however,  the  pledgor 
is  still  the  general  owner,  the  pledgee  has  a  special  property 
only  and  upon  payment  of  the  debt  this  is  extinguished. 

§  88.  Bills  of  lading,  warehouse  receipts,  etc.,  are  usu- 
ally assigned  like  negotiable  instruments  by  mere  indorsement, 
but  are  not  in  other  respects  negotiable.  They  are  merely 
representatives  of  the  goods,  and  when  pledged  are  subject 
to  the  same  rules  that  govern  the  pledge  of  corporeal  chat- 
tels. The  pledgee,  in  general,  gets  no  better  title  than  his 
pledgor. 

§  89.  Care, — The  ordinary  care  of  a  mutual  benefit  bail- 
ment has  been  explained  and  little  need  be  added  here.  If 
the  pledge  property  be  choses  in  action,  the  duty  of  the 
pledgee  is  not  limited  to  their  safe-keeping.  He  must  take  all 
necessary  steps  at  proper  times  to  keep  alive  and  to  collect 
the  rights  represented  by  the  paper.     Thus,  in  case  of  promis- 

§86.  Spreckels  v.  Nevada  Baiik,.^.100  Am.  D.  363;  Douglas  v.  Peo- 
113  CaUf.  272,  45  Pae.  K.  329,  54  'pie's  Bank,  86  Ky.  176,  5  S.  W.  K. 
Am.   St.   E.   348;     [— ]    Gemmell   v./  420,  9  Am.  St.  E.  276,  post  sees.  151, 

Davis,  75  Md.  546,  23  Atl.  E.  1032,  222  and  cases  there  cited. 

32  Am.  St.  E.  412.  §  89.      1—1      Preston   v.    Pratlier, 

§87.     Pullman  V.  Upton,  96  U.  S.  137    U.    S.    604,    11    Sup.    Ct.    162; 

328;    Spreckels  v.  Nevada  Bank,  113  Swift  v.  Tyson,  16  Peters  (U.  S.)  1; 

Calif.  272,  45  Pac.  E.   329,  54  Am.  Third   National   Bank    v.    Boyd,    44 

St.  E.  348;     1—]   Gemmell  v.  Davis,  Md.   47,   22   Am.   E.   35;     Cooper   v. 

75  Md.  546,  23  Atl.  E.  1032,  32  Am.  Simpson,  41  Minn.  46,  42  N.  W.  E. 

St.  E.  412;    State  v.  Bank  of  New  601,   16   Am.   St.   E.   667;     Ware   v. 

England,  70  Minn.  398,  73  N.  W.  E.  Squyer,    81    Minn.    388,    84    N.    W. 

153,   68   Am.   St.   E.   538,   542   note.  E.    126,    83   Am.    St.   E.    390,   note; 

§  88.      Burton    v.    Curyea,    40    111.  First    National   Bank   v.    O  'Connell, 

320,  89  Am.  D.  350;    Davenport  Na-  84  Iowa  377,   51    N.  W.   E.   162,   35 

tional  Bank  v.  Homeyer,  45  Mo.  145,  Am.  St,  E,  313. 

36 


PlGNUS,  OR  PLEDGE.  §§  90-91 

sofy  notes,  proper  steps  must  be  taken  to  lix  the  liability  of 
indorsers  and  to  collect  interest  and  princiiJal  when  due.  And 
in  the  case  of  pledged  stocks,  bonds,  bills  of  lading,  etc.,  ordi- 
nary diligence  must  be  exercised  in  securing  the  property  and 
profits  represented  by  such  paper.  All  this  is  only  that  care 
Avhicli  an  ordinarily  prudent  business  man  is  wont  to  exercise 
in  the  conduct  of  his  own  affairs  of  like  kind.  Any  loss 
through  the  negligence  of  the  pledgee  may  be  recouped  by  tlie 
pledgor  by  way  of  counterclaim  in  an  action  on  the  debt. 

§  90.  Proceeds  of  collateral. — If  collateral  security  be  con- 
verted into  money,  the  law  requires  its  application  on  the 
debt.  If  there  be  a  surplus  it  is  money  had  and  received  to  the; 
use  of  the  pledgor  and  the  law  implies  a  promise  to  pay  it 
over.  If  the  pledgee  fails  to  do  so,  the  pledgor  has  his  choice 
of  suing  in  assumpsit  for  the  balance  or  in  equity  for  an  ac- 
counting. 

§  91.  Conversion  by  pledgee. — If  there  be  a  wrongful  sale 
or  misapplication  of  the  pledged  property  by  the  pledgee,  the 
pledgor  may  sue  in  assumpsit  for  the  balance  in  excess  of  his 
debt,  or  he  may  sue  in  trover  for  conversion.  If  the  property 
has  been  converted,  he  need  not  make  demand  or  tender  of 
the  debt  before  bringing  suit. 

§  92.    The  measure  of  damages  for  conversion  of  the 

property  by  the  pledgee  is  the  fair  market  value  of  the  goods 
less  the  amount  of  the  debt. 

Collateral  securities,  such  as  stocks,  bonds,  etc.,  which  are 
subject  to  fluctuating  values,  present  a  difficulty,  and  various 
rules  have  been  adopted  by  the  courts  as  to  the  price  at  which 
such   securities   should   be   valued    in   assessing   damages   for 

§  90.     Hunt    V.    Xevers,    15    Pick.  Keith,   57    HI.   451,    11    Am.    R.    28, 

(Mass.)      500,     26     Am.     D.     616;  Baker   v.   Drake,   53   X.   Y.   211.    1."? 

[— ]      Masonic     Savings     Bank     v.  Am.   R.   507,   Third    National    Bank 

Bangs 's  Adm'r,  84  Ky.  135,  4  Am.  v.  Boyd,  44  .Md.  47,  22  Am.  R.  35. 

St.  R.  197.  Dolliif    v.    Robbing,    S3    Minn.    49S, 

§  91,      [_]      Stearns  v.   Marsh,   4  S6  X.  W.  R.  772,  85  Am.  St.  R.  466. 

Denio   (X.  Y.)   227,  47  Am.  D.  248.  466. 

§90       [ — ]      Wright    V.   Bank   of  The     Massachusetts    and     Illinois 

Metropolis,  110  N.  Y.  237,  18  N.  E.  cases    represent    the    e.\tronic    views. 

R.  79,  6  Am.  St.  R.  356;    [— ]  Wil-  The  New  York  case  takes  the  middle 

son  V.  Little,   2  N.  Y.  443,  51   Am.  ground  and,  on  the  whole,  furnishes 

U.  307.    See  also  Fowlo  v.  Ward,  113  the  most  ctpiitable  rule. 
Mass.  548,  18  Am.  E.  534,  Sturges  v. 

37 


§§  93-95  OF  MUTUAL  BENEFIT  BAILMENTS. 

their  conversion.  On  the  whole,  it  seems  just  to  allow  the 
damages  that  would  naturally  be  sustained  by  the  owner  m 
restoring  himself  to  his  former  position,  or  m  other  words, 
replacing  the  stock. 

Accordingly,  the  rule  supported  by  reason  and  the  weight 
of  authority,  is  that  in  an  action  of  trover  for  a  conversion  of 
stocks  or  bonds,  their  value  is  the  highest  market  price  of  the 
securities  within  a  reasonable  time  after  the  owner  learns  of 
their  conversion.  This  covers  the  natural  and  proximate  loss 
of  the  owner,  but  does  not  allow  him  to  speculate  on  the 
market  and  delay  bringing  suit  in  the  hope  that  the  securities 
may  reach  a  higher  figure  and  so  increase  the  damages  he  may 
recover. 

§  93.  The  pledgor  warrants  his  title,  or  at  least,  that  he  has 
sufficient  property  to  make  the  pledge.  As  the  pledgee  takes, 
in  general,  subject  to  prior  liens,  the  pledgor  is  liable  to  him 
if  they  defeat  the  pledge,  unless  the  pledgee  took  with  knowl- 
edge of  such  claims. 

§  94.  Property  of  the  pledgor.— The  general  property  re- 
mains in  the  pledgor,  subject  to  the  pledgee's  lien,  even  after 
default,  and  he  may  assign  his  interest  or  sell  the  goods  sub- 
ject to  the  lien  of  the  pledge.  If  the  pledge  has  been  deliv- 
ered to  the  pledgee,  the  assignee  will,  of  course,  stand  in  the 
same  position  as  the  pledgor.  Execution  creditors  of  the 
pledgor  cannot  levy  on  the  pledged  property  until  they  have 
satisfied  the  pledgee's  claims. 

3.    Termmation  of  the  Fledge. 

§  95.  Classification. — The  pledge  relation  may  be  termi- 
nated— 

A.    By  act  of  the  parties.    The  pledge  may  be  extinguished 
by  act  of — 

1.     The  pledgor,  either  by 

(1)  Performance  of  the  obligation,  or 

(2)  Default  in  performance. 

§  93.      Story,    Bailments    &    Car-  [— ]    Norton    v.    Baxter,    41    Minn, 

riers,  §  354.  146,  42  N.  W.  E.  865,  16  Am.  St.  E. 

§94.      Brewster    v.     Hartley,     37  679;    [—]  Masonic  Savings  Bank  v. 

Calif.   15,  99  Am.   D.   237;    Lough-  Bangs 's  Adm'r,  84  Ky.  135,  4  Am. 

borough  V.  McNevin,  74  Calif.   250,  St.  E.  197;    [— ]  Hall  v.  Page,  4  Ga. 

14  Pac.  E.  369,  5  Am.  St.  E.  435;  428,  48  Am.  D.  235. 

;]8 


HGNUS,  OR  PLEDGE.  §§  96-9S 

2.     TJie  pledgee,  who  may 

(1)  Voluntarily  relinquish  the  pled-:--  wim- 

out  performance,  or 

(2)  Forfeit  the  pledge  by  his  own  wrong. 
B.    B\j  operation  of  law  the  destruction  of  the  chattel  works 

an  extinction  of  the  pledge  relation;  but  a  chanjre 
in  the  status  of  the  parties,  as  by  death,  marriage,  in- 
solvency, will  not  affect  the  pledge  contract. 

A.    Termin.vtion  by  Act  of  the  P.vrties. 

1.    Bij  Act  of  the  Pledgor. 

§  96.  (1.)  Full  performance  of  his  obligation  by  the 
pledgor  is  the  normal  means  of  terminating  the  relation.  Even 
readiness  to  perform  is  enough;  and  tender  of  the  debt  at  or 
after  maturity  discharges  the  lien  and  makes  the  pledgee,  if 
he  refuses  to  surrender  the  pledged  property,  guilty  of  con- 
version. Nor  is  it  necessary  to  the  discharge  of  the  lien,  as 
distinguished  from  the  payment  of  the  debt,  that  the  tender  be 
kept  good,  or  that  the  money  be  paid  into  court.  The  wrong- 
ful refusal  to  accept  payment  and  deliver  the  chattel  is  con- 
version and  makes  the  pledgee  absolutely  liable. 

§  97.  (2.)  Default  of  the  pledgor  in  performance  of  the 
obligation  at  its  maturity  gives  the  pledgee  the  right  to  con- 
sider the  pledge  as  terminated  at  once  and  to  proceed  to  his 
remedies.  He  may,  however,  treat  the  contract  as  still  in 
force  and  retain  the  pledge  until  the  debt  is  paid,  the  relation 
of  the  parties  to  each  other  and  to  the  pledge  continuing  as 
before  default.  Indeed,  in  the  absence  of  an  agreement  to  sell, 
the  pledgor  has  no  right  to  complain  if  the  pledgee  refuses  to 
do  so.  But  if  securities  are  likely  to  perish  or  seriously  shrink 
in  value,  a  sale  may  be  compelled  by  liill  in  equity. 

§  98.     Remedies    of    the    pledgee. — Upon    default    the 

pledged  chattel  is  still  a  mere  security,  and  does  not  become 

§96.     r— ]     Norton  V.  Baxter,  41  11     Iowa     410.     79     Am.     D.     497; 

Minn.  146,  42  N.  W.  E.  S6o,  16  Am.  Sc-hoiiler,      Bailments      &      farriers. 

St.    B.   679;     Loughborough   v.    Mr-  §  244. 

Nevin,  14  Calif.  250,  14  Pac.  R.  369,  §98.      [— ]      Robinson   v.   Hurley. 

5  Am.  St.  R.  435;    Ball  v.  Stanley,  11  Iowa  410,  79  Am.  D.  497;    Lu.-k- 

5  Yerg.  (Tenn.)  199,  26  Am.  D.  263.  etts  v.  Townsend.  3  Tex.  119.  49  Am. 

§  97.      [— ]      Robinson  v.  Hurley.  D.  723. 

39 


^§  99-101  <^F  MUTUAL  BENEFIT  BAILMENTS. 

the  property  of  the  pledgee.    To  realize  on  his  debt  he  may— 

a.  Sue  upon  the  debt. 

b.  Exercise  his  power  of  sale  by — 

(a)  A  sale  at  common  law, 

(b)  A  proceeding  in  equity, 

(e)  A  special  power  given  in  the  pledge  contract,  or 
(d)     A  statutory  sale. 

§  99.    Suit  on  the  debt. — The  pledgee  is  not  compelled 

to  rely  on  the  security  of  his  pledge.  He  may,  without  losing 
his  lien,  sue  the  pledgor  personally  on  the  debt.  The  pledge 
security  continues  until  he  has  obtained  not  only  judgment 
but  satisfaction  on  the  debt. 

§  100.    (a)     Sale  at  common  law. — After  default  of  the 

pledgor,  the  pledgee  may  demand  payment,  and  upon  failure 
of  the  debtor  to  comply,  sell  the  goods  at  public  sale  after 
reasonable  notice  to  the  debtor  of  the  time  and  place  of  sale. 
The  purpose  of  the  notice  is  to  enable  the  pledgor  to  see  that 
the  sale  is  fairly  conducted  and  to  find  bidders  to  enhance 
the  price.  If  he  knows  of  the  sale  therefore  it  is  enough, 
though  if  the  pledgee  fails  to  give  such  notice  he  assumes  the 
burden  of  showing  actual  knowledge  by  the  pledgor.  If  the 
pledgor  cannot  be  found  there  must  be  a  judicial  sentence 
to  warrant  the  sale. 

The  public  sale  must  be  conducted  with  perfect  fairness 
and  the  pledgee  cannot  himself,  either  directly  or  indirectly, 
be  the  purchaser.  If  he  buys  the  sale  is  voidable,  and  the 
pledgor  may  treat  the  pledge  contract  as  still  in  force. 

§  101. Choses   in   action. — The   law   requires   a   public 

sale  to  insure  the  best  terms  for  the  pledgor.  But  such  sale  of 
stocks,  bonds,  notes  and  the  like  might  result  in  large  sacri- 

§99.  [— ]  Eobinson  V.  Hurley,  D.  721,  723;  [— ]  Hall  v.  Page,  4  Ga. 
11  Iowa  410,  79  Am.  D.  497;  Wal-  428,  48  Am.  D.  235;  [— ]  Mary- 
lace  V.  Finnegail,  14  Mich.  170,  90  land  Ins.  Co.  v.  Dalrymple,  25  Md. 
Am.  D.  243.  Note  to  73  Am.  St.  E.  242,  89  Am.  D.  779;  Whitlock  v. 
567;  Fisher  v.  Fisher,  98  Mass,  303;  Heard,  13  Ala,  776,  48  Am.  D  73; 
Ehrlich  v.  Ewald,  66  Cal.  97,  4  Pac.  Jeanes's  Appeal,  116  Pa.  St.  573,  11 
R.  1062.  Atl.  E.  862,  2  Am.  St.  E.  624. 

§  100.     [— ]     Eobinson  v.  Hurley,  §  101.     [— ]     Maryland  Ins.  Co.  v. 

11     Iowa     410,     79     Am.     D.     497;  Dalrymple,   25  Md.   242,   89  Am.  D. 

[— ]  Stearns  v.  Marsh,  4  Denio  (N.  779;    White  v.  Phelps,  14  Minn.  27, 

Y.)    227,  47  Am.  D.   248;    Lucketts  100   Am.   D.   190;    Hunt   v.   Nevers, 

V    Townsend,   3   Texas  119,  49  Am.  L".  Pick.  (Mass.)  500,  26  Am.  D.  616. 

40 


PIGNUS,  OR  PLEDCxE.  §§  102-105 

fice  of  value.  Accordingly,  by  the  better  opinion  it  is  held 
that  in  the  case  of  stocks  and  bonds  a  sale  after  notice  on  the 
stock  exchange  according  to  the  custom  of  brokers  is  the 
proper  procedure.  Negotiable  notes  should  be  held  till  ma- 
turity and  collected,  unless  they  can  be  sold  for  full  value. 

§  102.     (b)      Sale   in   equity.— Sale    by    proceeding    in 

equity  under  a  decree  of  foreclosure  is  cumbersome,  and  should 
be  resorted  to  only  when  there  are  conflicting  claims,  where 
title  is  doubtful,  or  where  notice  can  not  be  given  to  the 
pledgor.  The  pledgee  is  not  entitled  to  go  into  <M|uity  if  he 
has  an  adequate  remedy  at  law. 

§  103.     (c)     Special  contract.— The  parties  may  agree 

in  the  pledge  contract  on  the  method  of  sale  in  case  of  de- 
fault. Such  stipulations,  if  not  unconscionable  and  oppress- 
ive, will  govern.  Thus,  it  may  be  agreed  that  the  sale  shall  be 
private,  that  demand  and  notice  shall  be  waived,  that  the 
property  may  be  purchased  by  the  pledgee;  but  not  that  the 
pledge  shall  become  irredeemable. 

§  104.    (d)     Statutory  sale.— In  many  of  the  states  sale 

of  the  pledge  upon  default  of  the  pledgor  is  regulated  by  stat- 
ute. This  is  sometimes  an  additional  remedy,  and  in  some  cases 
abrogates  the  right  of  sale  at  the  common  law. 

§  105.     Equitable    principles    govern. — The    principles 

applied  in  sale  by  any  of  the  means  mentioned  are  founded  in 
equity  and  the  rights  of  the  pledgor  are  always  safeguarded. 
If  the  pledge  is  divisible  only  so  nmch  may  be  sold  as  will 
satisfy  the  debt.  The  pledgee  is  bound  to  proceed  so  as  to 
realize  as  much  as  possible  for  the  pledgor  and  to  turn  over 
to  him  any  excess  remaining  after  the  debt  is  satisfied. 

§102.      [ — ]      American  Pig  Iron,  Jl.  667;     [  —  1    Maryland  Ins.  "Co.  v. 

etc.,  Co.  V.  German,  126  Ala.  194,  28  Dalrymple,   25   Md.   242,  89  Am.   D. 

So.    E.    603,    85    Am.    St.    R.    21;  779;     [—1    Robinson    v.    Hurley,   11 

[ — ]   Stearns  v.  Marsh,  4  Denio   (N.  Iowa  410,  79  Am.  D.  497;     .Toanes's 

Y.)    227,  47  Am.  D.  248;    Lucketts  Appeal,  116  Pa.  St.  573,  11  Atl.  R. 

V    Townsend,  3  Tex.  119,  49  Am.  D.  862,  2  Am.  St.  R.  624. 

7£3;     [— ]   Hall  V.  Page,  4  Ga.  428,  §105.       [— ]        Masonic     Savings 

4S   Am.   D.   235;     [— ]    Robinson  v.  Bank  v.  Bangs 's  Adm 'r,  S4  Ky.  1.15. 

Hurley,  11  Iowa  410,  79  Am.  D.  497.  4  Am.  St.  R.  197;    [—1  Whitlock  v. 

§103.      Lucketts    v.    Townsend,    3  Heard,  13  Ala.  776,  4S  Am.  D.  73; 

Tex.  119,  49  Am.  D.  723;  Cooper  v.  Maryland  Ins.  Co.  v.  Dalrymple.  25 

Simpson,  41  Miun.  46;    16  Am.  St.  Md.  242,  89  Am.  D.  779. 


^<  106-109        OF  MUTUAL  BENEFIT  BAILMENTS. 

^106.     Equity  of  redemption.— The  pledgor's  right  to 

redeem  the  pledge  by  performance  of  the  obligation  can  be  de- 
feated only  by  actual  sale  after  default.  It  has  been  said  that 
he  has  his  lifetime  in  which  to  redeem,  but  the  better  rule 
denies  him  the  privilege  of  sleeping  on  his  rights  until  his  de- 
mand becomes  stale.  A  stipulation  in  the  pledge  contract  de- 
priving the  pledgor  of  his  equity  of  redemption  is  void  as 
against  public  policy.  If  the  statute  of  limitations  has  run 
against  the  debt  the  pledgor  must  nevertheless  pay  the  debt 
to  redeem  the  pledge. 

2.    By  Act  of  the  Pledgee. 

i  107.  (1.)  Termination  by  consent  of  the  pledgee.— The 
pledgee  may,  of  course,  consent  to  yield  his  security  at  any 
time.  He  may  voluntarily  surrender  possession  of  the  pledge 
before  payment  of  the  debt,  take  other  security  in  lieu  of  the 
former,  or  waive  or  release  his  rights.  A  release  of  the  debt, 
of  course,  operates  as  a  release  of  the  pledge,  but  not  the  mere 
taking  of  new  security,  nor  the  substitution  of  a  new  note  for 
the  debt  unless  such  was  the  intention  of  the  parties. 

§  108.  (2.)  Wrong  of  the  pledgee. — Any  wrong  of  the 
pledgee  resulting  in  injury  to  the  pledge,  or  in  its  conversion, 
operates  at  once  as  a  termination  of  the  pledge  if  the  pledgor 
so  chooses.  And  the  destruction  of  the  thing  itself,  of  course, 
extinguishes  the  pledge. 

§  109.  Redelivery. — Possession  by  the  pledgee  is  essential 
to  the  life  of  a  pledge.    Redelivery  at  any  time  to  the  pledgor, 

§  106.      Lueketts    v.    Townsend,    3  §  108.      [— ]      Whitlock  v.  Heard, 

Tex.    119,    49    Am.    D.    723,    note;  13  Ala.  776,  48  Am.  D.  73. 

[— ]   Wilson  V.  Little,  2  N.  Y.  443,  §  109.     [— ]     American  Pig  Iron, 

51    Am.    D.    307;      [— ]    Stearns    v.  etc.,   Co.,   v.   German,   126  Ala.   194, 

Marsh,  4  Denio  (N.  Y.)  227,  47  Am.  28   So.   E.   603,   85   Am.   St.   E.    21; 

D.  248;    Gilmer  v.  Morris,   80  Ala.  [ — ]      Masonic      Savings     Bank     v. 

78,    60    Am.    E.    85.      But    compare  Bangs 's  Adm 'r,  84  Ky.  135,  4  Am. 

Wright   V.   Eoss,   36   Calif.   414  and  St.  E.  197;    [— ]  Wilson  v.  Little,  2 

Hancock   v.   Franklin   Ins.    Co.,    114  N.      Y.     443,      51      Am.     D.      307; 

Mass.  155.  [ — ]   Stearns  v.  Marsh,  4  Denio   (N. 

§107.       Treadwell    v.     Davis,     34  Y.)  227,  47  Am.  D.  248;    [— ]  Hou- 

Calif.   601,   94  Am.  D.   770;     Story,  ton  v.  Holliday,   2   Murph.    (N.   C.) 

Bailments   &    Carriers,    §    360,    365;  111,   5  Am.   D.   522;     [— ]    Allen  v. 

Schouler,     Bailments     &      Carriers,  Delano,  55  Me.  113,  92  Am.  D.  573. 
§263. 

42 


PIGNUS,  OR  PLEDGE.  ^  |0!» 

save  for  some  temporary  purpose  such  as  leaving  a  chattel 
with  the  owner  for  repair,  at  once  puts  an  end  to  the  pledge, 
but  a  wrongful  taking  by  the  pledgor  does  not  affect  the 
pledgee's  right. 

When  by  any  of  the  means  mentioned  the  pledge  relation  is 
terminated,  it  becomes  the  duty  of  the  pledgee  to  return  the 
identical  thing  pledged  in  as  good  condition  as  when  it  was 
received  save  for  such  wear  and  deterioration  as  can  not  be 
charged  to  lack  of  ordinary  care  on  the  part  of  tlie  pledgee. 
And  with  the  thing  should  be  returned  any  interest,  rent, 
profit,  or  increase  from  the  thing  while  in  the  pledgee's  hands. 
The  pledgor  is  entitled  to  the  return  of  his  chattel  and  all  in- 
crements added  during  the  pledge  relation. 


43 


B.    LocATio,  OR  Hiring. 


CHAPTER  VII. 


OF  LOCATIO  REI. 


§  110.     Definition     of     locatio     bail-     §  117. 


ments. 


-Trover  for  conversion. 
Contract      void      or 


111. 


Distinctions. 

1.     Nature  of  the  relation. 
112.     The  essentials. 

!B.     Eights  and  duties  of  the 
parties. 

Title  and  enjoyment. 

Expenses, 
llo.     Eight  to  use. 
116.     Conversion. 


113 
114 


118.     

voidable. 

119.     Other  actions. 

120.  Assignment  by  bailee. 

121.  Bailee  and  third  persons. 

122.  Compensation. 

123.     Contract  incomplete. 

3.     Termination  of  the  rela- 
tion. 

124.  Duty  of  the  bailee. 


§  110.  Definition. — A  locatio,  or  hiring,  is  a  bailment  of 
a  ciiattel  for  a  reward.  It  includes  (§  64)  :  1.  Locatio  rei, 
in  which  the  bailment  purpose  is  the  use  of  a  thing,  and 
2.  Locatio  operis,  in  which  the  bailment  purpose  is  service 
about  the  thing.     Of  these  in  their  turn. 

§  111.  Distinctions. — Locatio  ret  is  the  hired  use  of  a 
thing.  There  is  no  English  word  that  applies  precisely  to 
this  bailment.  Hiring  and  letting  include  not  only  the  locatio 
bailments  but  also  the  hiring  and  letting  of  personal  services 
and  of  real  estate,  which,  of  course,  are  not  bailments.  The 
locatio  bailment  involves  the  letting  of  a  chattel  by  the  bailor, 
or  letter,  and  the  hiring  of  that  chattel  by  the  bailee,  or  hirer. 

1.    Nature  of  the  Relation. 

§  112.  The  essentials  of  this  relation  are,  (a)  a  chattel  to 
be  hired,  (b)  a  contract  of  hire,  and  (c)  a  recompense. 

(a)     Any   chattel,   corporeal  or   incorporeal,   which  is  not 


§  112.    See  Chapters  1,  2,  5. 


44 


LOCATIO  EEL  §§  113-11.-, 

consumed  in  the  use,  may  be  hired.     A  very  larj_'e  proportion 
of  the  eases  arise  oiit  of  the  hire  of  horses. 

(b)  The  general  principles  of  bailment  contracts  apply 
to  contracts  of  hire  and  need  not  be  here  restated. 

(c)  Compensation,  which  is  the  essential  element  of  all 
mutual  benefit  bailments,  in  locatio  rei  bailments  is  usually 
money,  but  it  may  be  goods,  services  or  any  substantial  benefit. 
It  may  be  agreed  upon  or  merely  presumed  from  the  contract 
of  hiring;  and,  in  general,  the  law  favors  the  presumption 
that  the  use  of  another's  chattel  is  a  use  for  hire. 

2.    Rights  and  Duties  of  the  Parties. 

§  113.  Title  and  enjoyment. — A  bailor  warrants  that  he 
has  title  sufficient  for  the  purpose  of  the  letting  and  has  been 
said  to  warrant  the  thing  as  fit  for  the  use  to  which  it  is  to 
be  put.  Modern  cases  excuse  the  letter  for  defects  which  are 
not  known  to  him,  and  could  not  have  been  discovered  by 
the  exercise  of  due  care.  This  is  the  more  true  if  the  defects 
were  equally  known  by  the  hirer. 

§  114.  Expenses  in  putting  the  hired  chattel  in  proper  con- 
dition for  use  and  keeping  it  so  are  chargeable  to  the  letter, 
as  are  extraordinary  expenses  reasonably  incurred  in  preserv- 
ing the  chattel  from  injury  due  to  unexpected  causes  for 
which  the  hirer  was  not  at  fault.  But  the  letter  is  not  bound 
to  provide  against  ordinary  wear  and  tear  from  the  use,  nor 
furnish  the  ordinary  keep  of  hired  animals.  Custom  arid  the 
nature  of  the  contract  of  hire  usually  determine  who  should 
bear  expenses. 

§  115.  Right  to  use. — Use  of  the  hired  chattel  is  the  very 
purpose  of  this  bailment.     The  first  right  of  the  hirer,  there- 

§  113.  Lynch  V.  Kichardsou,  1G3t?J  §  114.  [— ]  Lcacb  v.  French,  G9 
]\lass.  160,  39  N.  E.  E.  801,  47  Am./  Me.  389,  31  Am.  E.  296;  Harring- 
St.  E.  444;  Copeland  v.  Draper,  157  t^  ton  v.  Snyder,  3  Barb.  (X.  Y.)  380. 
Mass.  558,  32  N.  E.  E.  944,  34  Am.  '  ■'  §115.  Woodman  v.  Hubbard,  25 
St.  E.  314 ;  Hadley  v.  Cross,  34  Vt.  N.  H.  67,  57  Am.  D.  310,  [—1  Cobb 
586,  80  Am.  D.  699;  Xye  v.  Iowa  v.  Wallace,  5  Cold.  (Tenn.)  539,  98 
City  Alcohol  Works,  51  Towa  129,  50  Am.  D.  435;  McConnell  v.  Maxwell, 
X.  W.  E.  988,  33  Am.  R.  121;  Hig-  3  Black.  (Ind.)  419,  26  Am.  D.  428; 
man  v.  Camody,  112  Ala.  267,  20  Banfield  v.  Whipple,  10  Allen 
So.  E.  480,  57  Am.  St.  E.  33;  '  (Mass.)  27,  87  Am.  D.  618;  Story, 
[— ]  Leach  v.  French,  69  Me.  389,  31  Bailments  and  Carriers,  §§  395,  396; 
Am.  E.  296.  Beach  v.  Eailroad,  37  X.  Y,  457. 

45 


§§  116-117  OF  LOCATIO  BAILMENTS. 

fore,  is  the  right  to  "the  exclusive  use  and  control  of  fhe 
hired  thing  during  the  period  of  hire,"  and  this  right  he  may 
defend  against  all  the  world  including  the  letter. 

But  this  use  is  limited  to  the  purpose  of  hiring;  using  the 
thing  for  another  purpose  is  conversion.  The  manner  aqd 
extent  of  the  use,  too.  must  conform  to  the  terms,  expressed 
or  implied,  of  the  bailment  contract.  Any  departure  by  the 
hirer,  or  his  servants  in  the  course  of  their  employment,  makes 
the  hirer  absolutely  liable  for  injuries  to  the  chattel. 

§  116.     Conversion. — The   departure  from  the   contract 

may  amoimt  to  conversion  of  the  property,  or  it  may  be 
merely  a  trespass.  What  acts  amount  to  a  conversion  is  often 
far  from  clear.  Not  every  wrongful  dealing  with  another's 
chattel  is  a  conversion.  But  "acts  which  themselves  imply 
an  assertion  of  title  or  of  a  right  of  dominion  over  personal 
property,  such  as  a  sale,  letting  or  destruction  of  it,  amount 
to  a  conversion,  even  though  the  defendant  may  have  honestly 
mistaken  his  rights ; ' '  and  so  does  any  other  act  done  with 
intent  to  deprive  the  owner  of  his  property,  permanently  or 
temporarily.  And  a  neglect  or  refusal  to  deliver  property 
when  demanded  is  evidence  of  conversion,  because  these  acts 
are  evidence  that  the  defendant  in  withholding  it  claims  the 
right  to.  which  is  a  claim  of  a  right  to  dominion  over  it. 

Many  cases  hold  that  intentionally  driving  a  horse  beyond 
the  point  for  which  he  was  hired,  or  in  a  different  direction,  or 
keeping  it  beyond  the  time,  will  constitute  conversion.  The 
rule  is  often  a  harsh  one  and  some  recent  cases  have  taken 
the  ground  that  such  an  act  was  not  necessarily  of  itself  con- 
version. 

§  117.    Trover  for  conversion. — Upon  conversion  by  the 

§116.       [— ]       Spooner    v.    Man-  §117.      Hart    v.    Skinner,    16    Vt. 

Chester,   133   Mass.   270,   43   Am.   E.  138,   42   Am.  D.   500;     Woodman   v. 

514;     [— ]    Wentworth   v.    McDuffie,  Hubbard,   25   N.   H.   67,   57  Am.   D. 

48   N.   H.   402;     Woodman   v.   Hub-  310;    [— ]   Cobb  v.  Wallace,  5  Cold, 

bard,  25  N.  H.  67,  57  Am.  D.  310;  (Tenn.)      539,     98     Am.     D.     435; 

[— ]      Cobb     V.     Wallace     5     Cold.  [— ]     Spooner    v.     Manchester,     133 

(Tenn.)  539,  98  Am.  D.  435;    East-  Mass.  270,  43  Am.  K.  514;    Eotch  v. 

man    v.    Sanborn,    3    Allen    (Mass.)  Hawes,    12    Pick.    (Mass.)     136,    22 

594,  81  Am.  D.  677;    Irish  v.  Cloyes,  Am.   D.   414.     But   compare  Farkas 

8  Vt.  30,  30  Am.  D.  446.     But  see  v.  Powell,   86  Ga.  800,   13  S.  E.  E. 

Doolittle  V.  Shaw,   92  Iowa  348,   00  200;      Harvey    v.    Epes,     12    Gratt. 

N.  W.  E.  621,  54  Am.  St.  E.  562.  (Va.)  153. 

46 


LOCATIO  EEI.  |§  118.119 

liiuL-r.  the  letter  acquires  a  vosted  right  of  which  he  can  not 
be  deprived  without  his  consent.  Return  to  the  terms  of  the 
contract  will  not  avail  the  bailee.  The  bailor  may  treat  the 
act  as  practically  a  sale  and  sue  in  trover  for  the  full  value 
of  the  property. 

The  letter  is  not  compelled  to  receive  back  converted  prop- 
erty, but  if  he  does,  this  is  not  of  itself  waiver  of  his  right. 
It  merely  lessens  the  damages  he  can  recover  by  the  value  of 
the  chattel  as  it  was  returned. 

§  118.     Contract  void  or  voidable. — It  affords  the  bailee 

no  excuse?  that  the  contract  was  a  Sunday  contract  and  there- 
fore void.  The  action  is  not  on  the  contract  but  for  the  tor- 
tious dealing  Avith  chattels  not  belonging  to  him  in  a  manner 
inconsistent  with  the  rights  of  the  true  owner,  and  it  is  un- 
necessary to  set  up  the  contract  in  order  to  show  the  right  of 
action.  The  defendant  must  set  up  the  illegal  contract  to  show 
his  excuse  and  this  he  is  not  allowed  to  do.  Neither  party  can 
rely  on  an  illegal  contract  to  prevail  in  his  suit.  For  the 
same  reason  infanctj  is  no  defence  to  an  action  for  conversion. 
The  infant  is  liable  for  his  torts. 

Neither  is  it  a  defence  that  the  loss  would  have  occurred  if 
there  had  been  no  conversion,  nor  that  the  hirer  was  guilty 
of  no  neglect.  Upon  conversion  the  property  is  practically 
his  and  at  his  risk. 

§  119.     Other  actions. — The  bailor,  in  any  case  where 

loss  is  due  to  want  of  ordinary  care  on  the  part  of  the  bailee, 
or  to  his  failure  to  keep  within  the  terms  of  the  bailment,  may 
bring  action  of  trespass  or  case  and  recover  for  any  loss  suf- 
fered even  to  the  full  value  of  the  thing  if  it  has  been  de- 
stroyed. These  principles  prevail  as  well  in  code  states  where 
distinctions  between  actions  founded  upon  tort  have  been 
abolished.  Under  the  single  civil  action  of  the  code  the  same 
recovery  may  be  had  as  under  the  various  common  law  actions 
before  mentioned. 

§  118.     Stewart  v.  Davis,  31  Ark.  §  119.    Crocker  v.  Gullifer,  44  Me. 

51S,   25  Am.  E.   576;     Hall  v.   Cor-  491,    69    Am.    D.     118;      Rotch    v. 

coraB,  107  Mass.  251,  9  Am.  B.  30;  Hawes,    12    Pick.    (Mass.)    136,    22 

Bay  V.  Tubbs,  50  Vt.  688,  28  Am.  E.  Am.   D.  414;    Stewart  v.  Da^-is,   31 

519;     Towne   v.   Wiley,   23  Vt.   355,  Ark.  518,  25  Am.  B.  576. 
56  Am.  D.  85 ;  [— ]  Da-s-is  v.  Garrett, 
6  Bins:.  716. 


§*^  120-122  OF  LOCATIO  BAILMENTS. 

5j  120.  Assignment  by  bailee.— Any  attempt  by  the  bailee, 
without  the  consent  of  the  bailor,  to  sell  or  pledge  the  hired 
chattel  amounts  to  its  conversion ;  but  where  the  hiring  is  not 
personal  and  is  for  a  definite  term  the  bailee  may,  in  general, 
assign  his  beneficial  interest,  and  the  assignee  will  secure  all 
the  rights  of  his  assignor.  The  bailee,  however,  remains  liable 
to  the  ovmev  for  any  loss  due  to  the  neglect  of  the  bailee's 
assignee  or  servants.  This  has  been  put  on  the  ground  of 
want  of  privity  between  the  bailor  and  subusers  of  the  bailee, 
l)nt  it  is  more  satisfactorily  explained  on  the  principles  of 
agency  or  of  master  and  servant.  The  assignee  is  treated  as 
a  sub-agent  or  servant  of  the  bailee  for  whose  acts  he  is,  in 
general,  responsible. 

5$  121.  Bailee  and  third  persons. — The  hirer  has  a  special 
jjroperty  in  the  thing  hired,  and  for  the  time  stands  to 
strangers  in  the  relation  of  owner.  For  any  injury  from  the 
hired  chattel  to  third  persons  due  to  the  neglect  of  the  bailee 
or  his  servants  he,  and  not  the  bailor,  is  liable.  And  during 
tlie  continuance  of  the  term  he,  and  not  the  bailor,  may  bring 
an  action  against  a  third  person  for  injury  to  the  thing,  re- 
covering pay  to  the  full  value  of  the  chattel  if  it  be  destroyed 
by  such  wrong  of  the  third  person.  This  right  rests  both  on 
the  hirer's  right  to  the  use  of  the  thing  and  the  fact  that  he 
is  answerable  over  to  the  general  owner.  In  bailments  for  an 
indefinite  term,  and  in  case  of  injuries  that  permanently  im- 
pair the  chattel,  the  bailor  also  has  his  action  against  third 
])ersoiis. 

§  122.  Compensation  to  the  promisor  is  the  characteristic 
feature  of  all  mutual  benefit  bailments.  In  locatio  rei  bail- 
ments the  hirer  is  bound  to  pay  the  letter  for  the  use  of  the 
thing  at  the  contract  price,  if  there  be  one.  If  no  price  has 
been  fixed,  then  the  customary  price  is  implied ;  or  in  the  ab- 

§  320.  Bailey  v.  Colby,  34  N.  H.  §  121.  [— ]  Little  v.  Fossett,  34 
29,  66  Am.  D.  752 ;  Sanborn  v.  Col-  Me.  545,  56  Am.  D.  671 ;  American 
man,  6  X.  H.  14,  23  Am.  D.  703;  District  Telegraph  Co.  v.  Walker,  72 
Swift  V.  Moseley,  10  Vt.  208,  33  Md.  454,  20  Atl.  E.  1,  20  Am.  St.  E. 
Am.  D.  197;  MeKenzie  v.  Nevius,  479;  Strong  v.  Adams,  30  Vt.  221, 
22  Me.  138,  38  Am.  D.  291;  Schouler,  73  Am.  D.  305;  McConnell  v.  Max- 
Bailments  &  Carriers,  §  145.  But  well,  3  Black.  (Ind.)  419,  26  Am.  I). 
see  Baird  v.  Daly,  57  N.  Y.  236,  15  428 ;  Brewster  v.  Warner,  136  Mass. 
Am.  K.  488;  Diinlap  v.  Gleason,  16  57,  49  Am.  E.  5. 
Mich.  158,  93  Am.  D.  231. 

48 


LOCATIO  RET.  §§  12:3-12-4 

sence  of  a  custom  a  reasonable  compensation  must  be  paid. 
What  is  reasonable  is  a  question  of  fact  to  be  determined  from 
the  circumstances  of  the  hirinti'. 

§  123.     Contract  incomplete. — If  the  hiring  was  for  a 

fixed  term  and  the  chattel  Avas  destroyed  or  rendered  unfit 
for  use  without  the  fault  of  either  party,  the  hirer,  if  the 
contract  is  divisible,  must  pay  for  the  use  had  pro  tanto  and  has 
no  claim  for  damages  against  the  letter.  If  the  bailee,  how- 
ever, was  at  fault  he  must  pay  the  full  price  less  any  amount 
the  letter  may  be  able  to  secure  from  the  hire  of  the  thing  to 
others  during  the  term :  but  if  the  fault  is  chargeable  to  the 
letter,  and  the  contract  divisible,  the  bailee  must  pay  for  the 
use  pro  tanto  and  may  recoup  any  damages  he  has  suffered. 
If  the  contract  was  entire,  it  has  been  held  that  the  bailee  must 
pay  all  or  nothing,  depending  upon  the  conditions  under  which 
complete  fulfillment  became  impossible.  But  the  better  rule  is 
that  for  any  beneficial  services  received  the  bailee  should  pay 
its  reasonable  worth,  deducting  any  damages  he  may  have 
suffered  through  the  fault  of  the  bailor. 

3.     Termination  of  the  Relation. 

§  124.  The  duty  of  the  bailee. — The  relation  may  be  ter- 
minated under  various  conditions,  as  stated  in  §  24  and  th(> 
following.  When  the  bailee  has  had  the  use  according  to  the 
terms  of  the  contract,  it  becomes  his  duty  to  redeliver  the 
chattel  and  to  pay  the  proper  compensation.  These  duties 
may,  of  course,  be  modified  by  stipulations  made  in  the  con- 
tract of  hire. 

§123.      Story,    Bailments    &    Car-  Cold.   (Tenn.)   539,  98  Am.  D.  435; 

riers,  §§  416,  417  a;    Schouler,  Bail-  Sanborn  v.  Colman,  6  N.  H.  14,  23 

ments  &  Carriers,  §§  160,  161.  Am.  D,  703. 

§  124.     [— ]      Cobb  V.  Wallace,  5 


49 


CHAPTER  VIII. 
OF  LOCATIO  OPERIS. 


§  125. 

Distinctions. 

§  142. 

126. 

General  principles  apply. 

143, 

1.    Nature  of  the  relation. 

144. 

127. 

The  essentials. 

145. 

128. 

Accession. 

2.    Eights  and  duties  of  the 

146. 

parties. 

147. 

129. 

Compensation. 

a.     Service  completed. 

148. 

130. 

(1)     According  to  contract. 

131. 

(2)     Not  according  to   con- 
tract. 

h.     Work  left  incomplete. 

149, 

132.     (1)     Destruction       of       the 
thing. 
Fault  of  bailor. 
Fault  of  bailee. 

-Who  can  give  a  lien. 
-Basis  of  the  lien. 
Does   not   extend 


133. 
134. 
135. 
136. 
137. 
138. 

139. 

140. 
141. 


(2) 
(3) 
Lien. 


to 


agisters  and  liverymen. 
Statutory  exten- 


sions. 

— Kinds  of  lien. 
How  regarded. 


150. 
151. 
152. 
153. 
1.54. 
155. 


156. 
157. 

158. 
159. 


Extent  of  the  lien. 

Enforcement  of  lien. 

Waiver  of  lien. 

Termination   of   lien. 

Property  rights  of  bailor 
and  bailee. 

Care. 

Special  locatio  custodiae 
bailments. 

W arehousemen,  elevator  own- 
ers, cold  storage  com- 
panies. 

W^arehousemcn,  etc. 

Effect  of  usage. 

Warehouse  receipts. 

Confusion  of  goods. 

Care. 

Lieu. 

Duration  of  the  relation. 

Other  special  bailees  for 
hire. 

Wharfingers. 

Factors  or  commission  mer- 
chants. 

Safe-deposit   companies. 

Agisters  and  liverymen. 


§  125.  Distinctions. — The  second  of  the  locatio  bailments  is 
locatio  opcris  or  the  baihuent  of  a  chattel  for  the  performance 
of  services  upon  it  for  a  reward.  As  before  noticed  (§  64), 
locatio  operis  bailments  are  ordinary  or  extraordinary,  and  of 
the  ordinary  three  classes  have  been  made  according  to  the 
nature  of  the  services  to  be  performed — 

(1)  Locatio  custodiae,  the  hired  custody  of  a  thing, 

(2)  Locatio  operis  faciendi,  the  hire  of  work  and  labor  upon 
a  thing,  and 

50 


LOCATIO  OPERIS.  |e  12ti-128 

(8)  Locutio  operis  mercium  vehendanim,  the  hired  carriage 
of  a  thing. 

Reserving  the  extraordinarj^  bailments  for  separate  treat- 
ment, we  shall  consider  the  rules  of  law  relating  to  the  familiar 
relations  of  bailors:  (1)  to  warehousemen,  wharfingers,  safe- 
deposit  companies,  factors  and  bailiffs  (agisters)  :  (2)  to  artis- 
ans employed  to  manufacture  chattels  from  materials  furn- 
ished, or  to  repair  chattels;  (3)  to  private  carriers  of  goods. 
For  the  most  part  these  will  be  treated  together.  But  brief 
special  consideration  will  be  needed,  and  this  will  be  given 
after  the  consideration  of  the  general  principles  of  locatio  operk 
bailments. 

§126.  General  principles  apply.— It  should  be  borne  in 
mind  that,  by  a  few  changes  of  terms  and  phrases  because  of 
the  different  bailment  purposes,  nearly  all  that  was  said  in  the 
discussion  of  locatio  rei  bailments  equally  applies  here.  By  spe- 
cial contract  the  relations  of  the  parties  may  be  modified  fb 
any  extent  not  forbidden  by  public  policy.  The  remaining 
chapters  of  the  subject  will  be  concerned  largely  in  applying 
to  specific  cases  the  general  principles  already  stated,  but  it  is 
precisely  this  application  that  causes  all  bailment  litigation, 
and  that  forms  the  substance  of  every  new  decision. 

1.     Nature  of  the  Relation. 

§  127.  The  essentials  of  every  locatio  operis  bailment  are : 
(a)  services  to  be  performed  upon  the  chattel,  (b)  a  contract 
for  such  services,  and  (c)  a  price  or  reward.  It  is  the  services 
about  the  chattel  and  the  compensation  to  the  bailee  that  are 
distinctive  of  this  bailment  and  mark  it  off  from  all  the  others. 
The  contract  for  services,  as  a  contract,  does  not  differ  from 
contracts  in  general. 

^  128.  Accession. — If  in  the  performance  of  tho  service  the 
bailee  adds  materials  to  the  chattel,  and  before  his  service  is 
completed  the  chattel  is  destroyed,  it  becomes  important  to 
determine  upon  whom  the  loss  of  the  materials  must  fall.  It 
is  the  rule,  on  the  doctrine  of  accession,  that  the  materials  and 
labor  become  part  of  the  chattel ;  and  this  is  so  even  though  the 
materials  exceed  in  value  the  chattel  itself.     So,  too,  if  th" 

§  128.  Pnlcifer  v.  Page,  32  Me.  Suell,  140  N.  Y.  193,  35  N.  i:.  H. 
404,  54  Am.  D.  582,  note;    Mack  v.     493,  37  Am.  St.  R.  534. 

51 


^;<  129-130  ^^'  LOCATIO  BAILMENTS. 

bailor  l"uniislu's  tlic  i"iw  materials,  his  title  follows  them  up 
to  the  finished  product,  the  increased  value  from  the  labor 
being'  added  by  accession.  But  if  the  workman  himself  furn- 
ishes the  materials  for  making  a  chattel  there  is  no  bailment 
but  an  ag-reement  for  a  sale.  Until  the  chattel  is  completed  and 
delivered  to  the  vendee,  the  title  remains  in  the  Avorkman. 

2.     Rights  and  Duties  of  the  Parties. 

§  129.  Compensation. — It  is  the  distinctive  feature  of  locatio 
opcris  bailments  that  the  bailee  receives  a  recompense.  The 
usual  rules  as  to  this  compensation  have  been  before  stated. 
But  when  one  has  been  employed  to  perform  work  and  labor 
upon  a  chattel,  and  for  some  cause  the  performance  is  inter- 
rupted before  the  contract  is  fully  executed,  special  questions 
arise.     It  may  be  that — 

a.  The  work  was  fully  completed 

(1)  According  to  the  contract, 

(2)  Not  according  to  the  mutual  intent, 

b.  The  work  is  left  incomplete  because  of 

(1)  Destruction  of  the  thing  without  the  fault  of  the 
bailee, 

(2)  The  fault  of  the  bailor  in  preventing  the  service, 

(3)  The  fault  of  the  bailee  in  abandoning  the  work. 

'a.     Service  Completed. 

§  130.  (1)  According  to  contract. — If  the  bailment  con- 
tract is  fully  executed,  the  bailee,  of  course,  is  entitled  to  his 
hire  according  to  the  agreement.  But  it  may  be  that  after 
the  work  on  the  chattel  was  completed,  the  thing  was  destroyed 
without  the  fault  of  either  party.  In  accordance  with  the 
doctrine  of  accession,  the  chattel  and  all  that  has  been  added 
to  it  belong  to  the  bailor,  and  he  must  bear  the  loss.  The 
workman  can  recover  for  his  labor  and  materials.  Res  perit 
domino. 

However,  the  workman  may  have  taken  the  work  by  the 
job.     The  contract  is  entire,  and  he  can  recover  only  when  he 

§  130.        Central      Lithographing,  Millau  v.  Vanderlip,  12  Johns.    (N. 

etc.,  Co.  V.  Moore,  75  Wis.   170,  43  Y.)    165,   7   Am.  D.   299;    McConihe 

N.  W.  E.  1124,  17  Am.  St.  R.  186;  v.  E.  E.,   20   N.  Y.  495,  75  Am.  D. 

[— ]    Sickels  V.   Pattison,   14  Wend.  420. 
(N.  Y.)    257,   28  Am.  D.  527;    Mc- 

52 


LOCATIO  OPEPvls.  §§  131-1:52 

has  fully  performed.  The  thiii<?  perishes  to  the  employer,  the 
work  to  the  mechanic.  So,  too,  if  he  furnishes  all  the  mate- 
rials, the  workman  is  the  owner  and  res  peril  ihiiiin<n,  x\\,-  em- 
ployer is  not  liable. 

§  131.  (2)  Not  according  to  the  contract. — If  the  service 
is  completed,  but  not  according  to  the  mutual  intent  of  the 
parties,  the  bailee  may  still  recover  on  a  eiuaiitum  meruit.  If  the 
deviation  was  due  to  the  fault  of  the  bailor,  or  with  his  con- 
sent, the  bailee  is  entitled  to  the  reasonable  worth  of  his  serv- 
ices. But  if  the  bailee  was  at  fault,  the  bailor  may  recoup  any 
damages  caused  by  the  deviation  from  the  contract.  If  tin- 
service  was  of  no  benefit,  or  if  the  damages  equal  or  exceed 
the  advantages,  there  can  be  no  recovery.  But  for  any  excess 
of  the  benefit  over  the  loss,  the  bailee  is  entitled  to  his  reward. 

The  same  principles  apply  to  services  not  completed  within 
the  stipulated  time.  The  bailee  is  liable  to  the  bailor  for  losses 
due  to  the  delay.  No  compensation  can  be  recovered  for  extra 
services  or  for  more  valuable  materials  furnished  without  tiie 
acquiescence  of  the  bailor. 

b.     Work  Left  Incomplete. 

§  132.  (1)  Destruction  of  the  thing. — According  to  the 
principles  before  stated,  if  the  thing  perish  before  completion 
without  the  fault  of  either  party,  the  laborer  is  entitled  to  com- 
pensation pro  tanto  for  labor  and  materials  already  expende<l. 
Res  perit  domino. 

Under  an  entire  contract  there  can  be  no  recovery  by  a  work- 
man who,  for  any  cause,  leaves  the  work  incomplete.  The  ten- 
dency of  the  courts,  however,  is  in  favor  of  relaxing  the  strict- 
ness of  the  early  cases,  and  allowing  one  who  has  performed 
a  beneficial  service  compensation  at  least  in  so  far  as  the 
benefit  of  the  service  exceeds  the  detriment.  There  is  also  a 
tendency  to  interpret  contracts  of  service  as  divisible  rather 
than  entire  where  the  terms  and  conditions  admit  of  snch  in- 
terpretation. As  is  always  the  case  when  rules  of  law  are 
under  process  of  modification,  the  eases  at  present  are  in  hope- 
less conflict. 

§  131.  Taft  V.  Montague,  14  Mass.  Am.  D.  .IJT.  C'omparo  Britton  v. 
282,  7  Am.  D.  215;  [— ]  Sickels  v.  Turner,  «  N.  TI.  4S1,  26  Am.  I>.  71.3, 
Pattison,  14  Wend.  (N.  Y.)  257,  28     note. 

53 


^§  133-136  OF  LOCATIO  BAILMENTS.  ' 

§  133.  (2)  Fault  of  bailor.— If  the  fault  of  the  bailor  pre- 
vents the  completion  of  the  services,  the  bailee,  according  to  the 
principles  of  agency,  may  recover  for  the  services  rendered 
and  for  any  loss  naturally  resulting  from  the  bailor's  wrong. 

§134.  (3)  Fault  of  bailee.— If  the  bailee  abandons  the 
work,  even  according  to  some  authorities  wilfully  and  malici- 
ously, some  cases  allow  him  to  recover  the  worth  of  services 
actually  rendered  less  all  loss  caused  to  the  bailor  by  the 
abandonment  of  the  service.  If,  on  the  whole,  the  service  is 
beneficial,  it  must  be  paid  for.  Other  cases  hold  that  this  rute 
applies  only  when  the  abandonment  was  involuntary,  and  many 
still  adhere  to  the  strict  rule  denying  him  any  recovery. 

§  135.  Lien.— Not  only  is  the  bailee  entitled  to  compensa- 
tion for  his  services  upon  a  chattel,  but  the  law  now  gives  to 
practically  every  bailee  who  has  performed  such  services  a 
security  for  his  wages  in  a  lien  on  the  chattel.  A  lien  is  the 
right  to  retain  possession  of  another's  property  until  satisfac- 
tion is  secured  for  some  charge  thereon. 

A  lien,  at  common  law,  is  founded  upon  possession,  actual  or 
constructive ;  this  must  be  uninterrupted  while  the  lien  exists ; 
except  in  the  case  of  fraud  or  mistake,  a  lien  once  lost  can  not 
be  restored  by  resumption  of  possession.  It  is  not  assignable, 
for  as  soon  as  the  possession  essential  to  a  lien  is  surrendered 
to  the  assignee,  the  .assignor  loses  his  lien  and  has  nothing  to 
assign. 

§  136.  Who  can  give  a  lien. — ' '  A  lien  is  a  proprietary  inter- 
est, a  qualified  ownership,  and  in  general  can  only  be  created 
by  the  owner  or  by  some  person  by  him  authorized. ' '  Neither 
a  thief,  nor  a  bailee,  unless  authorized  or  clothed  with  the 

§  133.      Story,    Bailments    &    Car-  599,  33  Am.  E.  809 ;   Miller  v.  Mar- 

riers,  §  441;    Scbouler,  Bailments  &  ston,  35  Me.  153,  56  Am.  D.  694. 

Carriers,  §  111.  §  136.      [— ]      Small  v.   Eobinson, 

§134.       Hillyard     v.     Crabtree's  69  Me.  425,  31  Am.  E.  299 ;    Sargent 

Adm  'r,  11  Tex.  264,  62  Am.  D.  475.  v.  Usher,  55  N.  H.  287,  20  Am.  E. 

Compare     Steeples     v.     Newton,     7  208;    [ — ]  Williams  v.  Allsup,  10  C. 

Oreg.  110,  33  Am.  E.  705,  and  Brit-  B-    (N.  S.)   417,   100  E.   C.  L.  417; 

ton  V.  Turner,  6  N.  H.  481,  26  Am.  Watts  v.  Sweeney,  127  Ind.  116,  26 

D.  713.     See  also  2  Kent 's  Commen-  N.   E.  E.   680,   22   Am.   St.   E.   615 ; 

taries,  591.  Hale  v.  Barrett,  26  111.  195,  79  Am. 

§135.     [— ]       Sensenbrenner       v.  D.    367;     McKenzie    v.    Nevius,    22 

Matthews,  48  Wis.  250,  3  N.  W.  E.  !\Te.  138,  38  Am.  D.  291. 

54 


LOCATIO  OPERIS.  §§  137-l:i.S 

indicia  of  ownership  or  authority  by  the  owner,  eau  create  a 
lien  on  goods  not  liis  own. 

But  where  one  is  entrusted  with  property  for  safekeeping  <»r 
use  and  hires  repairs  necessary  to  its  preservation  or  utility, 
the  owner's  consent  to  such  emplojnnent  is  presumed  and  the 
mechanic  has  a  lien  for  his  services.  A  lien  for  services  creat<'d 
by  one  who  had  a  right  to  subject  the  property  to  it  is  prior  t<» 
all  other  claims  against  the  property. 

§  137.     Basis  of  the  lien. — The  right  of  lien  originated 

in  cases  where  the  i)arty  was  bound  by  law  to  receive  goods, 
such  as  innkeepers  and  common  carriers ;  it  was  later  extended 
so  that  every  bailee  for  hire  who  by  his  labor  and  skill  had 
enlianced  the  value  of  the  goods  had  a  lien  upon  them  for  his 
compensation.  Still  later,  on  principle  the  lien  was  entended 
to  the  warehouseman  to  secure  his  storage ;  and  now,  it  has 
been  said,  "the  lien  is  given  by  the  common  law  to  anyone 
w^ho  takes  property  in  the  way  of  his  trade  or  occupation  to 
bestow  labor  and  expense  upon  it,"  whether  the  remuneration 
is  fixed  by  an  agreement  or  by  an  implied  contract  to  pay  a 
reasonable  price.  The  law  considers  the  laborer  worthy  of  his 
hire  and  secures  it  to  him  by  allowing  him  to  retain  the  goods 
upon  which  he  has  expended  time  and  labor  until  he  has 
received  his  reward.  "The  lien  rests  on  principles  of  natural 
equity  and  commercial  necessity." 

§  138.    Agisters,  liverymen. — The  lien  does  not  extend  to 

agisters  and  livery  stable  keepers  for  the  reason  that  they  do 
not  impart  additional  value  to  the  animals.  A  liveryman  who 
takes  a  horse  to  breed  or  train  does  enhance  his  value  and 
accordingly  has  a  lien  for  such  services  and  for  the  board  of 
the  horse  during  the  time.  This  reason  for  denying  agisters 
and  liverymen  a  lieu  is  unsatisfactory,  for  no  more  do  ware- 
housemen add  to  the  value,  but  it  is  a  more  serious  objection 

§  137.      [—1      Grincell  v.  Cook,   3  §  138.      [— ]     Grinr.cll   v.   Cook,   3 

Hill    (X.   Y.)    485,   38   Am.   D.  663;  Hill    (X.  Y.)   485,   38   Am.   D.  663; 

[ — ]   Biirdict  V.   Murray,  3  Vt.  302,  Jackson  v.  Cummins,  5  Meos.  and  W. 

21   Am.   D.   588;     [— ISteinman   v.  341;    Millor  v.  Marston,  .35  Mc.  15.3. 

Wilkins,  7  Watts  &  S.  (Pa.)  466,  42  56  Am.   D.  6!!4;    Lord  v.  .Tones,  24 

Am.  D.  254;    Mathias  v.  Sellers,  86  Me.  439.  41  Am.  D.  391;    Harris  v. 

Pa.  St.  486,  27  Am.  E.  723;    Arians  WoodrufiF,  124  Mass.  205,  26  Am.  R. 

V.  Brickley,  65  Wis.  26,  26  X.  W.  R.  658. 
188,  56  Am.  E.  611. 

55 


§§  139-142  OF  LOCATIO  BAILMENTS. 

thai  the  livorymuii  does  not  have  that  uninterrupted  posses- 
sion of  the  animals  that  is  essential  to  the  life  of  a  lien.  By 
special  contract  the  right  of  lien  may  be  reserved  to  agisters 
and  liverymen. 

§  139.  By  statute  the  lien  has  been  very  generally  ex- 
tended to  agisters  and  liverymen,  and  every  bailee  who  per- 
forms services  upon  a  chattel  for  hire  has  now  a  lien  for  his 
compensation. 

§  140.    Kinds  of  lien. — Liens  are  general  or  special.    A 

general  lien  is  security  for  the  payment  of  a  general  balance  of 
account  growing  out  of  a  series  of  transactions  of  a  particular 
kind.  It  does  not  extend  to  debts  arising  in  a  different  kind 
of  transaction. 

A  special  lien  is  security  for  services  performed  in  relation 
to  the  particular  property  to  which  it  attaches. 

§141.  How  regarded. — General  liens  "are  discounte- 
nanced by  the  courts  as  encroachments  on  the  common  law," 
except  those  "fastened  on  the  law  merchant  by  inveterate 
usage."  Such  are  the  liens  of  factors,  insurance  brokers,  bank- 
ers and  wharfingers. 

A  special  or  particular  lien  has  been  pronounced  so  just  be- 
tween debtor  and  creditor  that  it  can  not  be  too  much  favored. 
"It  is  founded  upon  the  principles  of  natural  justice  and  tends 
to  the  security  and  encouragement  of  commerce." 

§  142.     Extent   of  the   lien. — The   lien   extends   to   the 

whole  and  every  part  of  the  goods  to  secure  the  whole  and 
every  part  of  the  debt.  If  several  articles  are  delivered  under 
one  contract,  each  is  security  not  only  for  its  portion  of  the 
cost  but  for  the  services  expended  on  all  the  rest.     A  release 

§  139.    Sargent  v.  Usher,  55  N.  H.  §  142.     [— ]     Schmidt  v.  Blood,  9 

287,    20   Am.   E.    208;     Lambert    v.  Weml.  (N.  Y.)  268,  24  Am.  D.  143; 

Nicklass,  45  W.  Va.  527,  72  Am.  St.  New    Haven    and    Northampton    Co. 

^-  828.  V.  Campbell,  128  Mass.  104,  35  Am. 

§141.     [— ]     Steinman  V.  Wilkins,  E.   360;     [— ]    Steinman  v.  Wilkins, 

7  Watts  &  S.   (Pa.)  466,  42  Am.  D.  7  Watts  &  S.   (Pa.)   466,  42  Am.  D. 

254;    Mclntyre  V.  Carver,  2  Watts  &  254;     Hensel   v.    Noble,    95   Pa.    St. 

S    (Pa.)   392,  37  Am.  D.  519;    Mc-  345,  40  Am.  E.  659;     Hale  v.  Bar- 

Kenzie   v.    Nevius,    22    Me.    138,    38  rett,    26   111.    195,    79   Am.    D.    367; 

Am.  D.  291;    [— ]    Masonic  Savings  [— ]  Potts  v.  N.  Y.  and  N.  E.  Eail- 

Bank  v.  Bangs 's  Adm'r,  84  Ky.  135,  road  Co.,  131  Mass.  455,  41  Am.  E. 

4  Am.  St.  E.  197.  247. 

56 


LOCATIO  OPEBIS.  |§  143-145 

of  part  of  the  goods  does  not  rdeast-  th<-  lien  pro  tanto,  but  the 
lien  for  the  whole  debt  attaches  to  the  goods  not  released.  On 
the  other  hand,  payment  of  part  of  thf^  debt  will  not  release  the 
goods  pro  tanto,  but  the  bailee  may  keep  all  the  goods  till  the 
full  debt  is  paid. 

§  143.  Enforcement  of  lien. — At  common  law  the  lien- 
holder  had  but  a  mew  right  to  retain  the  goods  until  his 
account  was  paid,  but  no  right  of  sale.  The  lic^n  is  an  adili- 
tional  security ;  the  bailee  may  sue  on  his  del)t  and  if  he  recov- 
ers judgment  the  lien  affords  him  the  advantage  of  assuring 
him  property  of  the  debtor  on  wliidi  ht*  may  Ifvy  execution. 
By  statute  the  right  of  sale  is  often  given,  but  being  in  deroga- 
tion of  the  common  law  the  statute  must  be  strictly  followed. 

By  contract  provision  may  be  made  for  a  sal"-  by  the  lien- 
holder. 

§144.  Waiver  of  lien. — "Lien  can  not  survive  posses- 
sion; and  except  in  ease  of  fraud,  and  perhaps  mistake,  such  a 
lien  can  not  be  restored  by  resumption  of  possession.  There- 
fore the  voluntary  parting  with  possession  of  the  goods  will 
amount  to  waiver  by  surrender  of  the  lien."  By  mutual  eon- 
sent  the  lien  could  be  revived,  but  not  so  as  to  alfect  thf  inter- 
vening rights  of  third  persons. 

Moreover,  "an  agreement  to  give  credit,  or  a  special  contract 
for  a  particular  mode  of  payment  inconsistent  with  a  lien,  is  a 
waiver  of  it."  And  the  bailee  by  express  consent,  or  by  con- 
duct from  which  consent  may  justly  be  implied,  nuiy  waive  the 
lien.  Indeed,  any  act  of  the  bailee  inconsistent  with  the  exist- 
ence of  a  lien  is  evidence  of  a  waiver  thereof. 

§  145.     Termination  of  the  lien. — Payment  or  tender  of 

the  debt  by  the  bailor  discharges  the  lien  and  makes  the  bailee 
if  he  refuses  to  surrender  possession  of  the  goods  liable  in 

§  143.      [— ]      Whitlock  v.   Ileai-a,  Stoddard    Woolen     .\ranufaetory    v. 

13  Ala.  776;    48  Am.  D.  73;    Knapp  Huntley,   8    N.    H.   441,   31   Am.    D. 

V     McCaffrey,    178    111.    107,    52    X.  ]f»8;    Hale  v.  Barrett,  26  111.  195,  79 

E.    E.    898,    69    Am.    St.   E.     290;  Am.  D.  367;    Chandler  v.  Beldon.  IS 

[-J     Doane     v.     Eussell,     3     Gray  Johns.   (N.  Y.)   157,  9  Am.  D.  193; 

(Mass.)   382.  Hanna  v.  Phelps.  7  ln<l.  21.  63  Am. 

§  144.       [— ]       Sensenbrenner     v.  D.  410 ;    McKeuzio  v.  Nevius.  22  Mo. 

Matthews,  48  Wis.  250,  3  N.  W.  E.  138,  38  Am.  D.  291. 

599    33  Am.  E.  809;    Miller  v.  Mar-  §145.      f-1      Whitlock  v.   Hoard. 

ston,   35  Me.   153,  56  Am.  D.  694;  13  Ala.  776,  48  Am.  D.  73;    Huuna 

57 


^  24(5  OF  LOCATIO  BAILMENTS. 

trover  for  conversion.  The  lien-holder  by  any  act  inconsistent 
Avith  the  character  of  his  possession  and  denying  the  title  of  the 
owner  destroys  his  lien ;  and  any  act  amonnting  to  a  waiver  of 
the  lien,  of  course,  works  its  extinction.  By  mutual  consent 
of  the  parties  the  lien  may  be  terminated  at  any  time. 

§  146.  Property  rights  of  bailor  and  bailee.— The  bailee  for 
hired  services  has  a  right  to  retain  the  chattel  and  to  earn 
his  compensation.  This  amounts  to  a  special  property  in  the 
chattel  which  he  may  maintain  against  all  the  world  including 
the  bailor.  lie  is  also  answerable  over  to  the  bailor  for  the 
chattel,  and  so  may  recover  from  third  persons  for  injury  to 
the  property  or  for  its  conversion.  He  may  also  insure  the 
property  for  its  full  value.  In  any  case,  he  may  recover  not 
only  the  amount  of  his  own  interest,  but  the  full  amount  of  the 
loss  or  insurance,  and  after  satisfying  his  own  claim  hold  the 
balance  as  trustee  for  the  bailor. 

The  bailor,  too,  has  property  in  the  chattel  which  he  may 
vindicate  against  the  whole  world  including  the  bailee.  As 
against  third  persons,  a  recovery  by  either  bailor  or  bailee  is 
a  bar  to  an  action  by  the  other  party.  As  against  the  bailee 
for  a  fixed  term,  the  bailor  need  make  no  demand  before  bring- 
ing suit,  and  the  same  is  true  if  the  bailee  has  converted  the 
property  to  his  own  use.  In  other  cases  demand  must  be  made 
before  suit  is  brougjit.  No  right  of  action  accrues  until  such 
termination  of  the  term,  or  conversion  by  the  bailee,  or  demand 
by  the  bailor,  and  the  statute  of  limitations  will  not  begin  to 
run  in  favor  of  the  bailee  until  such  right  exists.  But  demand 
must  be  made  wdthin  a  reasonable  time  or  the  laches  of  the 
bailor  will  defeat  his  right  to  relief. 


V.  Phelps,  7  Ind.  21,  63  Am.  D.  410 ;  488 ;      Eeizenstein      v.      Marquardt, 

McKcnzie  v.  Nevius,  22  Me.  138,  38  75   Iowa   294,   39   N.   W.   K.   506,   9 

Am.  D.  291;   Mclntyre  v.  Carver,  2  Am.   St.   R.   477;     Goodwin   v.   Bay, 

Watts  &   S.    (Pa.)    392,   37   Am.   D.  108  Tenn.  614,  69  S.  W.  E.  730,  91 

.519.  Am.    St.    E.    761;      [— ]     American 

§  146.      [ — ]      Burdiet   v.   Murray,  District    Telegraph    Co.    v.    Walker, 

3  Vt.  302,  21  Am.  D.  588 ;  Waring  v.  72  Md.  454,  20  Atl.  E.  1,  20  Am.  St. 

The  Indemnity  Fire  Insurance  Co.,  45  E.  479  ;     Halyard  v.  Dechelman,   29 

N.  Y.  606,  6  Am.  E.  146;  Fire  Insur-  Mo.  459,  77  Am.  D.  585;  Lancaster 

ance  Co.v.  Transportation  Co.,  66  Md.  Mills    v.    Merchants ',    etc.,    Co.,    89 

339,  7  Atl.  E.  905,  59  Am.  E.  162;  Tenn.   1,   14  S.  W.   R.   317,   24  Am, 

Baird  v.  Daly,  57  N.  Y.  236,  15  Am.  St.  E.  586. 

58 


LOCATIO  OPEEIS.  |§  147-149 

§  147.  Care. — The  ordinary  care  i-Kiuired  in  mutual  benefit 
bailments  has  l)een  explained  in  its  general  principles.  By 
way  of  special  application  to  locdtio  opfris  bailments  it  may 
be  noted  that  the  bailee  must  use  the  care  ordinarily  exercised 
under  like  conditions  by  the  class  to  which  he  belon^'s.  The 
skill  professed  by  a  carriage  paintci-  and  l)y  the  painter  of  a 
costly  picture  differs  greatly,  and  so  does  the  can*  t<»  be  de- 
manded of  a  watch  repairer  and  a  l)lacksmith.  Each  must  use 
ordinary  care  according  to  his  profession;  and  this  not  because 
of  any  contract  to  that  effect,  hut  because  of  the  duty  l:iid  upon 
the  party  by  law.  By  the  cstal)lished  and  well  known  usa^M-s 
of  trade  or  by  contract  this  liability  may  be  modified;  l)ut  not 
so  as  to  excuse  the  bailee  from  the  exercise  of  any  care,  and  not 
by  a  condition  promulgated  by  the  bailee  after  entering  upon 
the  undertaking.  The  hired  bailee  is  liable  f(u-  nonfeasance  as 
well  as  for  misfeasance  for  the  acts  of  his  servants  and  agents 
in  the  course  of  theii-  employment  as  well  as  for  his  own  acts. 
The  burden  of  proof  in  showing  nciilect  by  the  l)ailee  has  been 
sufficiently  explained  (§  17). 

§  148.  Special  locatio  custodiae  bailments. — There  are  cer- 
tain bailees  wdio  are  engaged  in  the  l)usiness,  often  quasi-public, 
of  providing  for  the  safe-keeping  of  the  goods  of  those  who 
choose  to  employ  them.  Such  are  warehousemen,  wharfingers, 
safe-deposit  companies,  factors,  commission  merchants,  agist- 
ers and  liverymen.  They  are  subject  for  the  most  part  to  the 
principles  governing  other  bailees  for  hired  custody,  but  their 
rights  and  duties  are  in  some  respects  peculiar. 

Wareliousemen,  Elevator  Owners,  Cold  Storage  Companies. 

§  149.  Warehousemen  are  bailees  whose  business  it  is  to 
keep  goods  and  merchandise  in  storage  for  hire.  In  some  of 
the  states  grain  elevators  serving  the  public  indifferently  in  the 

§  147.     [— ]     Coggs  V.  Bernard,  2  E.    306,    14   Am.   St.    R.   GSS ;     Hal- 

Ld.  Eay.   909,  1  Sm.  Ld.  Cas.   199;  yard  v.  Dechelman,  •J9   ^lo.  459.   77 

Kelton   V.    Taylor,    11   Lea    (Tenn.)  Am.  D.  .58.5. 

264,  47  Am.  E.  284;    [— ]  American  §  149.     f— 1     Sc-hmi.lt  v.  Blood,  9 

District  Telegraph  Co.  v.  Walker,  72  Wend.  (N.  Y.)  268,  24  Am.  D.  14.3; 

Md.  454,   20  Atl.  E.   1,   20  Am.   St.  Yockey   v.    Smith.    181    III.    5G4.    .54 

E.  479;    Swann  v.  Brown,  6  Jones's  N.  E.  E.  1048.  72  Am.  St.  B.  286; 

Law   (N.  C.)    150,  72  Am.  D.  568;  [—1    Schworin   v.   McKie,  51   N.   Y. 

Dale  V.  See,  51  N.  J.  L,  378,  18  Atl.  180,  10  Am.  R.  581. 

no 


^^  150-151  O^  LOCATIO  BAILMENTS. 

storage  of  grain  arc  made  public  warehouses  with  duties  of  a 
public  nature;  but  warehousemen  are  generally  private  bailees 
like  other  bailees  for  hired  custody.  Even  owners  of  bonded 
warehouses,  designated  by  the  government  for  the  storage  of 
dutiable  goods  in  bond  until  the  revenue  is  paid,  and  put  m 
charge  of  the  government  storekeeper,  are  private  warehouse- 
men liable  as  ordinary  bailees  for  hire ;  and  so  are  cold  storage 
companies  erecting  warehouses  for  the  keeping  for  hire  of  per- 
ishable goods  by  means  of  artificial  cold.  Railroad  compa- 
nies, as  soon  as  they  cease  to  be  common  carriers,  become  ware- 
housemen of  the  goods  until  the  goods  carried  have  been  re- 
ceived by  the  consignee. 

§  150.  Effect  of  usage.— The  general  principles  govern- 
ing locatio  custodiae  bailments  apply  to  warehouse  storage,  but 
in  determining  the  relations  undertaken  usage  and  custom  are 
of  particular  force.  Those  making  contracts  with  reference  to 
a  particular  business  are  presumed  to  know  of  the  uniform 
practices  of  such  business;  "this  usage  may  therefore,  in  the 
absence  of  an  agreement  to  the  contrary,  reasonably  be  sup- 
posed to  have  entered  into  and  formed  part  of  their  contracts 
and  understandings  in  relation  to  such  business  as  ordinary 
incidents  thereto.  And  where  usage  in  a  particular  trade  or 
business  is  known,  uniform,  reasonable,  and  not  contrary  to 
law.  or  opposed  to  public  policy,  evidence  of  such  usage  may  be 
considered  in  ascertaining  the  otherwise  uncertain  meaning 
of  a  contract  unless  the  proof  of  such  usage  contradicts  the 
express  terms  of  the  agreement."  But  usage  will  not  be  al- 
lowed to  contradict  or  vary  a  general  rule  of  law. 

§  151.     Warehouse  receipts  describing  the  property,  its 

ownership,  charges  for  storage  and  the  undertaking  of  the 
warehouseman,  are  commonly  issued  to  one  storing  goods  in 

§150.  [—1  Morniug  Star  v.  101  U.  S.  557;  Anderson  v.  Port- 
Cunningham,  110  Ind.  328,  11  N.  E.  land  Flouring  Mills  Co.,  37  Oreg. 
E.  593,  59  Am.  E.  211;  Drudge  v.  483,  60  Pac.  E.  839,  82  Am.  St.  E. 
I.eiter,  18  Ind.  App.  694,  49  N.  E.  771;  Dolliff  v.  Eobbins,  83  Minn. 
E.  34,  63  Am.  St.  E.  359 ;  Pribble  v.  498,  86  N.  W.  E.  772,  85  Am.  St.  E. 
Kent,  10  Ind.  325,  71  Am.  D.  327;  466;  Burton  v.  Curyea,  40  111.  320, 
Kelton  V.  Taylor,  11  Lea  (Tenn.)  89  Am.  D.  350;  [— ]  Geilfuss  v. 
264,  47  Am.  E.  284;  Chase  v.  Wash-  Corrigan,  95  Wis.  651,  70  N.  W.  E. 
burn,  1  Ohio  St.  244,  59  Am.  D.  623.  306;    60  Am.  St.  E.  143;    Insurance 

§  151.     [— ]    Shaw  V.  Eailway  Co..  Co.  v.  Kiger,  103  U.  S.  352. 

60 


LOCATIO  OPERIS.  §§  152-153 

a  warehouse.  Only  warehousemen  can  issue  them.  They  are 
not,  like  negotiable  instruments,  representatives  of  money,  but 
of  the  goods,  and  like  bills  of  lading  are  regarded  as  so  much 
merchandise.  Their  delivery  for  the  purpose  of  transfer  has 
the  same  effect  as  a  delivery  of  the  property  itself,  no  more,  no 
less;  it  passes  to  the  transferee  all  the  title  and  rights  of  the 
transferer  and  those  only. 

They  are  not  negotiable  at  common  law,  and  when  made  so 
by  statute  it  has  been  held  that  they  are  not  so  in  the  sense 
that  bills,  notes  and  other  re])resentatives  of  money  are  negoti- 
able, but  in  the  sense  that  they  are  all  like  bills  and  notes  trans- 
ferable by  indorsement  and  delivery.  They  are  contracts  as  well 
as  receipts,  and  often  contain  terms  defining  and  restricting 
the  liabilities  of  the  warehouseman.  These,  when  not  con- 
trary'' to  public  policy,  will  be  effectual  between  the  parties. 
Compare  Sec.  222,  post. 

§  152.     Confusion    of    goods. — Like    other    bailees    the 

warehouseman  is  boiuid  to  return  the  identical  goods  stored. 
It  has  already  been  seen  (§  8)  that  grain  of  different  o^v^le^s 
stored  in  an  elevator  is  commonly  mixed  in  one  mass,  each 
depositor  becoming  owner  in  common  of  his  share  of  the  whole. 
The  elevator  owner  is  bound  to  keep  in  the  bins  enough  grain 
to  satisfy  the  demands  of  all  the  depositors.  Failure  to  do  this 
is  conversion  to  the  extent  of  the  deficiency. 

§  153.     Care. — The  warehouseman  does  not  undertake  to 

keep  the  goods  safely,  but  only  to  use  ordinary  diligence  in 
keeping  them,  and  is  not  liable  for  loss  arising  from  theft  or 
accident  for  which  he  was  not  in  fault.     He  undertakes  that 

§  152.      See    in    addition    to    the  R.   581 ;     Parker   v.   Union    Ice   and 

cases  cited  in  §  8,  Drudge  v.  Leiter,  Salt   Co.,   59   Kas.   626,   54   Pac.   R. 

18   Ind.  App.  694,  49  K   E.   R.   34,  672,  68  Am.   St.  R.   383;     Marks  v. 

63  Am.  St.  R.  359;     [— ]    Morning  New  Orleans  Cold  Storage  Co.,  107 

Star  V.   Cunningham,   110   Ind.   328,  La.  172,  31  So.  E.  671,  90  Am.  St. 

11  N.  E.  R.  593,  59  Am.  R.  211.  K.   285;    Allen  v.  Somers,   73  Couu. 

§  153.     [— ]     Schmidt  v.  Blood,  9  355,  47  Atl.  R.  653,  84  Am.  St.  R. 

Wend.  (N.  Y.)  268,  24  Am.  D.  143;  158;     ^Minnesota   Butter  and  Cheese 

[— ]   Clafliu  V.  :\Ieyer,  75  X.  Y.  260,  Co.  v.  St.  Paul  Cold  Storage  Ware- 

31  Am.  R.  467;    Willett  v.  Rich,  142  house  Co.,  75  Minn.  445,   77  X.  W. 

Mass.  356,   7  X.  E.  R.  776,  56  Am.  R.  977,  74  Am.  St.  R.  515;    Taussig 

E.  684;     Moulton  v.  PhilUps,   10  R.  v.  Bode,   134  Calif.  260,  66  Pac.  R. 

I.  218,  14  Am.  R.  663;    [— ]  Schwer-  259.  86  Am.  St.  R.  250;    Lancaster 

in  V.  :\rcl\ie,  51   X.  Y.  180,  10  Am.  Mills    v.    Merchants',    etc.,    Co.,    89 

01 


§§  154-155  Oi''  LOCATIO  BAILMENTS. 

the  warehouse  is  reasonably  safe,  fit  for  its  purpose  and  free 
from  defects  which  could  have  been  discovered  by  ordinary 
care.  It  should  be  equipped  with  modern  appliances  and  im- 
provements in  general  use  by  his  class  of  custodians  for  the 
protection  of  the  goods  against  injury  by  theft,  fire,  rats,  heaf 
and  other  destroying  agents.  If  he  keeps  a  cold  storage  ware- 
house he  undertakes  to  maintain  the  necessary  temperature  or, 
if  for  good  cause  that  is  impossible,  to  give  his  customers  time- 
ly warning  to  remove  their  property.  If  the  bailor  has  equal 
knowledge  of  the  defect  and  fails  to  protect  his  property,  his 
contributory  negligence  will  preclude  his  holding  the  ware- 
houseman liable.  The  warehouseman  may  insure  the  goods 
stored  for  their  full  value,  but  in  the  absence  of  a  contract  he  is 
not  compelled  to  do  so.  By  contract  the  warehouseman  may 
make  himself  liable  in  every  event,  or  excuse  liability  except 
for  his  or  his  servants'  positive  negligence. 

§  154.     Lien. — The    warehouseman's    lien,    as    already 

pointed  out,  is  specific,  not  general,  and  is  restricted  to  the 
services  rendered  in  relation  to  the  whole  quantity  deposited 
at  one  time  or  under  one  contract. 

§  155.    Duration   of  the   relation. — The   duties   of   the 

warehouseman  begin  as  soon  as  the  property  has  been  delivered 
into  his  control  and  accepted  by  him  and  continue  until  he  has 
yielded  control  to  one  entitled  to  receive  the  goods.  He  may 
assume  control  by  actual  acceptance  of  the  goods  in  his  ware- 
house, by  a  custom  to  accept  goods  left  in  a  given  place  in  the 
warehouse,  or  by  actually  taking  them  in  charge  before  they 
come  to  the  warehouse.  His  control  may  be  terminated  in  a 
similar  manner.  It  is  held  that  when  the  crane  of  the  ware- 
house is  attached  to  the  goods  to  raise  them  into  the  ware- 
house, the  warehouseman's  liability  begins;  and  when  grain 
reaches  the  spout  carrying  it  from  the  elevator,  the  elevator 
owner's  liability  as  a  warehouseman  ends. 

Tenn.  1,  24  Am.  St.  E.  586;    Hiekey  [— ]  Steinman  v.  Wilkins,  7  Watts  & 

V.  Morrell,  102  N.  Y.  4.54,  7  N.  E.  S.   (Pa.)  466,  42  Am.  D.  254. 

R.    321,    55   Am.    R.    824;     Pope   v.  §155.     Ducker  v.  Barnett,  5   Mo. 

Milling  Co.,  130  Calif.  139,  62  Pae.  97,  The  R.  G.  Winslow,  4  Biss.   (U. 

E.  384,  80  Am.  St.  R.  87.  S.)    13;    Rodgers  v.  Stophel,  32  Pa. 

§154.     [— ]      Schmidt  v.  Blood,  9  St.    Ill;     72   Am.   D.    775;     Blin   v. 

Wend.   (X.  Y.)  268,  24  Am.  D.  143;  Mayo,  10  Vt.  56,  33  Am.  D.  175. 

62 


LOfATIO  OPERIS.  §§  158.158 

Other  HpLcial  Bailees  for  Hire. 

^  156.  Wharfingers  are  those  who  keep  wharves  for  the  pur- 
pose of  receiving  goods  for  hire.  Their  undertaking  as  bailees 
is  essentially  that  of  warehousemen,  and  their  rights  and  duties 
are  subject  to  the  rules  just  stated.  Usage  has  large  place  iu 
connection  with  the  undertaking  of  the  wharlingt-r.  but  it  must 
not  be  in  conflict  with  established  rules  of  law. 

§  157.  Factors  or  commission  merchants  make  it  their  busi- 
ness to  receive  goods  for  sale  upon  commission.  As  custodians 
of  the  goods  they  are  bound  to  store  them  in  safe  warehouses, 
and  must  use  the  diligence  of  warehousemen  in  caring  for 
them.  The  factor  is  one  of  the  fcAv  bailees  whom  the  usages  of 
trade  have  given  a  general  lien  on  the  goods  in  his  possession 
to  secure  a  general  balance  of  account. 

§  158.  Safe-deposit  companies  undertake  for  hire  to  furnish 
a  drawer  or  box  in  burglar-proof  safes  or  vaults  in  wliieh 
papers  or  other  valuables  may  be  safely  kept.  Notwithstand- 
ing they  have  not  that  full  control  of  the  property  usually  given 
to  bailees,  their  relation  to  the  depositor  is  held  to  be  that  of 
bailee  to  bailor.  They  are  not  depositaries  since  the  .service  is 
not  gratuitous.  They  undertake  to  exercise  ordinary  care 
which,  in  view  of  the  nature  of  the  business,  means  a  high 
degree  of  diligence  and  watchfulness.  In  the  absence  of  a  spe- 
cial agreement  they  are  not  insurers  of  the  safety  of  the  valu- 
ables deposited  in  the  rented  boxes.  They  must  provide  what 
they  profess  to  furnish,  must  keep  pace  with  improvements  and 
safety  appliances  and  use  that  high  care  that  ordinarily  i)iu- 
dent  men  are  wont  to  bestow  on  property  of  such  special  vahu'. 

§156.       Chapmau     v.     State,     104  Kather,  31  Tex.  77,  9S  Am.  1).  31(); 

Calif.  690,  38   Pae.   E.  457,  43  Am.  |— ]   Coggs  v.  Beruard,  2  L.l.  Kay- 

St.  E.  158;   Willey  v.  Allegheny  City,  moiul  909,  1  Sm.  L.  Cas.  199. 

118  Pa.   St.  490,   12   Atl.   E.  453,   4  §  158.      [—1      Prcstou  v.  Prathcr, 

Am.  St.  E.  608;  Wooster  v.  BloKsom,  137  U.  S.  604,  11  Sup.  Ct.  162;    Safe 

9  Jones's  L.  (N.  C.)  244,  72  Am.  D.  Deposit   Co.   v.   Pollock,    85   Pa.   St. 

549;     Blin   v.   Mayo,   10   Vt.   56,   33  391.    27    Am.    E.    660;      Cusson    v. 

Am.  D.  175;    Eodgers  v.  Stophel,  32  Southern    California    Savings    Bank, 

Pa.  St.  Ill,  72  Am.  D.  775;    Cox  v.  133  Calif.  534,  65  Pac.  E.   1099,  85 

O 'Eeiley,  4  Ind.  368,  58  Am.  D.  633.  Am.    St.    E.    221;     Mayer    v.    Rem- 

§  157.      McKenzie    v.    Nevius,    22  singer,  180  111.  110,  54  X.  E.  R.  159, 

Me.  138,  38  Am.  D.  291  ;    Vincent  v.  72  Am.  St.  E.  196. 

63 


^  159  OF  LOCATIO  BAILMENTS. 

§  159.  Ag-isters  and  liverymen  as  bailees  for  hire  need  little 
special  mention.  As  already  noted  thej^  formed  almost  the 
only  classes  of  hired  bailees  that  at  the  common  law  had  no 
lien  on  the  bailed  chattels  as  security  for  their  compensation; 
but  now  by  statute  they  have  been  given  such  a  lien.  The 
agister  must  keep  his  pasture  properly  enclosed,  and  the  livery- 
man his  stable  in  proper  condition  and  the  animals  properly 
secured  therein. 

§159.     Cecil  V.  Preucli,  4  Martin  E.  951,  72  Am.  St.  E.  828;    Costello 

(N.  S.)    (La.)   256,  16  Am.  D.  171;  v.  Ten  Eyck,  86  Mich.  348,  49  N.  W. 

Swann  v.  Brown,  6  Jones's  L.    (N.  E.  152,  24  Am.  St.  E.  128;    Halty  v. 

C.)    150,  72  Am.   D.  568;    Lambert  Markel,  44  111.  225,  92  Am.  D.  182. 
V.  Nicklass,  45  W.  Va.  527,  31  S.  E. 


64 


PART   111. 
OF   EXTRAORDIXAKV    HAILMKXTS. 


CHAPTER   IX. 


OF    INNS    AND    INNKEEPERS. 


??  160.  Suniinary. 
161.  Historical. 
16li.     Distinctions. 

1.     The  nature  of  the  rela- 
tion. 

(a)  The  innkeeper  and  his 
accommodations. 

163.  Definition  of  innkeeper. 

164.  The  accommodations. 

165.  Who  are  not  innkeepers. 

166.     Sleeping  car   companies. 

167.     Steamboat   companies. 

168.     Boarding     and     lodging 

houses  and  restaurants. 

169.  Holding  out  as  innkeeper. 

(b)  The  guest. 

170.  Definition. 

171.     Transients. 

172.     Acceptance    by   the   inn- 
keeper. 

173.     Non-acceptance      as      a 

guest. 


§174. 


175. 
176. 
177. 
178. 
179. 


Duration  of  the  rchitioii. 
2.     Eights  and  duties  of  the 

parties. 
Duty  to  receive  guest. 

Excuses  for  refusal. 

Duty  to  receive  goods. 
Liability  of  innkeeper. 
Liability  to  guest  personally. 


180.     Liability  for  goods. 


181. 

182. 
183. 
184. 

185. 
186. 

187. 


188. 


— Exceptional   liability. 
— ?]xceptionp. 
— Burden  of  |)roof. 
— For    wliat    property    lia- 
ble. 
Owner's   custody. 


Limitation  of  liability. 

Compensation  and  lien. 
3.     Termination  of  the  rela- 
tion. 
How  terminated. 


§  160.  A  summary  of  the  previous  chapters  shows  that  we 
have  considered  gratuitous  baihiients,  in  which  the  promisor 
(bailor  or  bailee)  receives  no  compensation,  and  mutual  benefit 
bailments,  in  which  the  promisor  has  his  reward.  Of  the  latter 
class  are  locatlo  rei  and  locatio  opcris  bailments,  and  of  the  sec- 
ond of  these  those  that  are  ordinary  have  been  already  treated. 
But  extraordinary  locatio  oi)eris  liailments,  in  which  the  prom- 
isor stands  in  an  exceptional  i-elation,  still  remain  for  examina- 
tion.    Reserving  for  consideration  in  later  chapters  the  subject 


S§  I(il-1G2  OT-'   KXTHAOKDINAEY  BAILMENTS. 

of  common  carriers,  we  take  up  now  the  innkeeper  as  an 
exceptional  bailee  with  reference  to  the  baggage  of  his  guest; 
and  it  Avill  be  convenient  in  this  connection  also  to  consider  the 
relation  of  the  innkeeper  to  his  guest  personally,  which  is  not 
one  of  bailment. 

§  161.  Historical.— Formerly  all  bailees  were  strictly  ac- 
countable to  tlie  bailor  for  the  bailed  goods  (Holmes's  Common 
LaAv).  This  liability,  modified  largely  as  to  most  bailees,  still 
attaches  with  some  diminution  to  innkeepers  and  common  car- 
riers. The  reason  they  have  not  been  relieved  of  this  extraor- 
dinary liability  is  the  peculiar  opportunity  offered  them  for 
fraud  and  plunder  in  the  lawless  times  of  the  Middle  Ages  when 
the  highways  to  London  were  so  infested  with  thieves  and 
robbers  that  traveling  without  an  armed  escort  was  unsafe. 
The  only  safe  haven  on  the  Continent  was  the  monastery,  the 
inns  being  rather  places  where  thieves  divided  their  plunder 
and  planned  their  raids,  than  places  of  repose  and  safety  for 
travelers.  In  England  the  strict  accountability  of  the  inn- 
keeper made  the  English  inn  a  place  of  security  and  comfort. 
Though  conditions  have  become  more  settled,  still  the  guest  ife 
peculiarly  at  the  mercy  of  the  innkeeper  and  his  servants, 
and  the  increased  facilities  for  travel  have  so  multiplied  the 
number  of  transients  seeking  our  modern  hotels  that  there  is 
scarcely  less  need  of  the  protection  of  the  law  for  the  wayfarer 
in  a  strange  place.  Statutes  in  most  of  our  states  have  modi- 
fied some  of  the  harsh  features  of  the  old  common  law  with 
reference  to  the  innkeeper;  yet  the  courts  on  the  whole  have 
been  loath  to  depart  from  the  rigid  regulations  formerly  ap- 
plied to  them. 

§  162.  Distinctions. —  Tavern,  inn,  hotel,  are  words  of  differ- 
ent origin.  The  first  originally  applied  to  places  furnishing 
food  and  drink  rather  than  lodging;  inn  was  the  recognized 
Avord  in  the  law ;  while  hotel  has  been  adopted  from  the  French 
Avithin  the  past  century  and  has  come  to  be  the  word  in 
popular  use.  In  this  country  the  three  AA'^ords  have  come  to 
have  practically  the  same  meaning. 

§  161.      Cromwell    v.    Stephens,    2  •     §  162.      See    these    words    in    auy 

Daly   (N.  Y.)    15;    Hulett  v.  Swift,  dietiouary,  and  the  historical  aceouut 

33    N.    Y.    571,    88    Am.    D.    405 ;  of  Daly,  .J.  in  Cromwell  v.  Stephens, 

[— J    Kisten    V.    Hildebrand,    9    B.  2  Daly  (N.  Y.)  15. 
Monroe  (Ky.)   72,  48  Am.  D,  416. 

66 


OF  INNS  AND  INNKEEPERS.  §§  163-165 

In  conformity  with  the  general  plan  of  the  work  we  shall 
consider,  1,  the  nature  of  the  relation ;  2,  its  rights  and  duties ; 
and  3,  its  termination.  The  nature  of  the  relation  calls  for  a 
definition  (a)  of  the  innkeeper  and  the  accommodation  he 
offers,  and  (b)  of  the  guest. 

1.     The  Nature  of  the  Relatiox. 

(a)     The  Innkeeper  and  His  Accommodations. 

§  163.  Definition. — The  innkeeper  is  one  who  holds  himself 
out  to  furnish  lodging,  or  lodging  and  other  entertainment,  to 
transients  for  hire. 

§  164.  The  accommodations. — Formerly  the  inn  offered  all 
the  entertainment  the  traveler  might  require  for  himself,  his 
beast,  and  his  traveling  equipments.  Changes  in  the  modes  of 
travel  and  conditions  of  life  have  called  for  the  modification 
of  the  definition  of  an  inn.  The  inn  of  to-day  may  furnish  all 
and  more  than  its  predecessor;  but  it  is  nevertheless  an  inn 
though  it  provide  no  entertainment  for  the  traveler's  horse, 
though  it  keep  no  liquors,  though  it  be  rim  on  the  "European 
plan"  and  furnish  lodging  only,  though  it  be  open  for  the 
summer  or  the  winter  season.  But  it  is  essential  as  to  the 
entertainment  that  it  should  furnish  lodging  and  usually  meals 
for  the  traveler,  though  the  development  of  th<^  European 
hotel  seems  likely  to  modify  this  last  requirement. 

§  165.  Who  not  innkeepers. — But  one  is  not  an  innkeeper 
wdio  furnishes  occasional  entertainment  only,  who  keeps  a 
restaurant  or  coffee-house  providing  food  only :  who  keeps  a 

'     §  163.       [_]       Kisten    v.    Hilde-  R    1099,  28  Pac.  R.  943,  27  Am.  St. 

brand,    9   B.    Monroe    (Ky.)    72,   48  E.  198;     [— ]  Kisten  v.  Hildcbrand, 

Am.   D.   416;    [—]    Pullman  Palace  9  B.  Monroe   (Ky.)    72,  48  Am.  D. 

Car  Co.  V.  Smith,  73  111,  360,  24  Am.  416;  Pinkerton  v.  Woodward,  33  Cal. 

B.  258;    Howth  v.  Franklin,  20  Tex.  557,    91    Am.    D.    657;     Hanc-oek    v. 

798,   73   Am.   D.   218;     Pinkerton   v.  Rand,  94  N.  Y.  1,  46  Am.  R.  112. 

Woodward,  33  Cal.  557,  91  Am.  D.  §  165.       [— ]       Kisten     v.     Hilde- 

657;    [— ]  Mowers  v.  Fethers,  61  N.  brand,   9   B.    Monroe    (Ky.)    72,   48 

Y.  34,  19  Am.  E.  244;     [— ]  Fay  v.  Am.  D.  416;     [— ]    Pullman   Palace 

Pacific    Improvement    Co.,    93    Cal.  Car  Co.  v.  Smith,  73  III.  360,  24  Am. 

253,    26    Pac.    R.    1099,    28    Pac.    R.  E.  258;    Howth  v.  Franklin,  20  Tex. 

943,  27  Am.  St.  R.  198.  79S,    73   Am.    D.   218;     Meaehani   v. 

§  164.      [— ]      Fay  v.   Pacific   Im-  Galloway,   102  Teuu.  415,  52  S.   W. 

provement  Co.,  93  Cal.  253,  26  Pac.  E.  859.  73  Am.  St.  R.  886. 

67 


i;;  lGG-168         Oi'  EXTRAORDIXARY  BAILMENTS. 

boardiny  house  for  the  entertainment  of  regular  boarders 
merely— though  one  may  be  an  innkeeper  as  to  transients  and 
not  an  innkeeper  as  to  boarders  kept  in  the  house—;  who 
keeps  an  apartment  house  for  regular  lodgers  even  though  a 
transient  may  occasionally  be  accommodated. 

5j  166,     Sleeping  car  companies. — Neither  are  sleeping 

car  companies  considered  in  law  as  innkeepers.  Every  reason 
for  excluding  them  has  been  effectually  refuted  save  one,  but 
it  is  Avell  settled  by  an  overwhelming  weight  of  authority  that 
they  are  not  innkeepers,  nor  subject  to  their  liability.  The 
most  cogent  reason  for  this  rule  is  that  the  "peculiar  liability 
of  the  innkeeper  is  one  of  great  rigor  and  should  not  be  ex. 
tended  beyond  its  proper  limits."  The  difference  between  the 
European  hotel  and  the  modern  compartment  sleeper  is  that 
one  is  stationary,  the  other  on  Avheels;  but  one  is  an  inn,  the 
other  is  not. 

J;  167.  Steamboat  companies,  too,  by  the  weight  of  au- 
thority, are  not  innkeepers.  They  are  common  carriers  "and 
no  one  is  subject  to  both  liabilities  at  the  same  time  and  with 
regard  to  the  same  property, ' '  but  in  one  case  it  was  said,  ' '  The 
relations  between  a  steamboat  company  and  its  passengers  who 
have  procured  state  rooms  differ  in  no  essential  respect  from 
those  that  exist  betM'een  the  innkeeper  and  his  guests." 

§  168.    Boarding  and  lodging  houses  and  restaurants,  as 

n1  ready  intimated,  are  not  inns.  A  boarding  house  keeper 
does  not  hold  himself  out  to  entertain  transients;  the  keeper 
of  a  restaurant  offers  no  lodging.  They  are  bailees  for  hire 
and  are  required  to  exercise  with  reference  to  the  effects  of 

§  166.       Compare     [— ]     Pullman  Steamboat  Co.,  151  N.  Y.  163,  45  N. 

Palace  Car  Co.  v.  Smith,  73  111.  360,  E.  E.  369,  56  Am.  St.  R.  616. 
24  Am.  R.  258,  and  Pullman  Palace         §  168.       [—1       Kisten    v.     Hilde- 

Car  Co.  V.  Lowe,  28  Neb.  239,  44  N.  brand,    9   B.    Monroe    (Ky.)    72,    48 

W.  R.  226,  26  Am.  St.  R.  325.     See  Am.  D.  416;    Meacham  v.  Galloway, 

also    [— ]    Blum    v.    Southern    Pull-  102  Tenn.  415,  52  S.  W.  R.  859,  73 

man  Palace  Car  Co.,  1  Flip.   (U.  S.)  Am.  St.  R.  886;    Taylor  v.  Downey, 

500;  Lawson  on  Bailments  and  Car-  104  Mich.  532,  62  X.  W.  R.  716,  53 

riers;    Adams  v.  New  Jersey  Steam-  Am.    St.    R.    472;    Sheffer    v.    Wil- 

boat  Co.,  151  N.  Y.  163,  45  N.  E.  R.  loughby,   163   111.   518,  45  N.   E.   E. 

.369,  56  Am.  St.  E.  616.  253,   54  Am.   St.  R.  483;    Moore  v. 

§  167.       [ — 1      Comjjare    Clark    v.  l^ong    Beach    Development    Co.,    87 

Burns,    118    :\Iass.    275,    19    Am.    R.  Cal.  483,  26  Pac.  R.  92,  22  Am.  St. 

456,    with    Adams    v.    New    Jersey  R.  265. 

68 


OF  LVNS  AND  IXXKEEPERS.  §§169-171 

the  sojourner  ordinary  care  in  view  of  the  nature  of  their 
undertaking.  As  to  reguhir  boarders  in  a  hotel  the  proprietor 
is  in  the  relation  of  boarding'  house  keeper,  not  of  innkeeper. 

§  169.  Holding  out  as  innkeeper.— It  is  tiie  fact  that  he 
holds  himself  out  to  receive  all  transients  who  may  cho.se  t.. 
seek  his  inn,  who  come  in  proper  condition,  able  and  willing 
to  pay  for  their  accommodation,  that  is  the  final  test  in  deter- 
mining whether  one  is  an  innkeeper  or  not.  If  he  so  holds 
himself  out  he  is  an  innkeeper  though  he  may  nuike  special 
contracts  with  part  of  his  customers,  or  furnish  some  witli 
board  only.  It  he  does  not  so  hold  himself  out  he  is  not  an 
innkeeper  though  he  may  accommodate  transients  occasionally. 
He  may  hold  himself  out  by  his  actions  as  well  as  by  his  declara- 
tions or  the  use  of  the  sign  in  front  of  his  inn. 

(h)     The  Guest. 

§  170.  Definition. — Having  considered  the  iinikeeper  and 
the  accommodation  he  offers  to  furnish,  we  next  iiK|uii-e  who  is 
a  guest?  A  guest  is  a  transient  who  i-es(n-ts  to  an  inn  as  such 
and  is  accepted  by  the  inidvceper.  This  definitiiui  leads  to  an 
inquiry  as  to  who  is  meant  by  a  tnuisicitt  and  what  is  <iccept- 
(ince  by  the  innkeeper. 

§  171.     Transients. — Exact  definition   of  a  transient   is 

difficult.     He  has  been  referred  to  as  a  traveler,  a   wayfarer. 

§  169.      [ — ]      Fay  v.   Pacific   Im-  Vance     v.     Tliroikmortoii,     5     Biisli 

provement  Co.,  93  Cal.  253,  26  Pac.  ''(Ky.)  41,  96  Am.  D.  327;    Magoe  v. 

K.  1099,  28  Pac.  R.  943,  27  Am.  St.  Pacific  Improvement  Co.,  9S  Cal.  67S, 

K    198;    Howth  v.  Franklin,  20  Tex.  33  Pac.  R.  772,  35  Am.  St.  R.   109; 

798,    73   Am.   D.   218;     Pinkerton   v.  [ — |     Fay    v.     Pacific     Improvement 

Woodward,   33  Cal.  557.  91   Am.   D.  Co.,  93  Cal.  253,  26  Pac.  R.  1099.  2S 

657;    Markham    v.   Brown,   S    N.   H.  Pac.    K.    943,    27    Am.    St.    R.    198; 

523,  31  Am.  D.  209 ;  Honscr  V.  Tully,  Cunningham    v.    Bucky,    42    W.    Vn. 

62  Pa.  St.  92,  1  Am.  R.  390.  671,  26  S.  E.  R.  442.  57  Am.  St.  K. 

§170.        Manning      v.      Wells,      9  878;   Carter  v.  Hobbs,   12  Midi.  52. 

Humph.    (Tenn.)     746,    51    Am.    D.  S3  Am.  D.  762;    Pinkerton  v.  Wood- 

688;      [—1     Curtis    v.     Murphy,    63  uard,  33  Cal.   557,  91   Am.   D.  657; 

Wis.  4,  22  X.  W.  R.  825,  53  Am.  R.  .Meacham     v.    Calloway,     102    Tenn. 

242.  415,  52  S.  W.  R.  859,  73  Am.  St.  K. 

§171.     [— ]     Curtis  v.  Murphy,  63  886;    Hancock  v.  Rand,  94  X.  V.   1. 

Wis.  4,  22  N.  W.  E.  825,  53  Am.  R.  46  Am.  R.    11  J:     Lusk   v.   Belofc.  22 

242;   r— 1  Kisten  v.  Hildebrand,  9  B.  Minn.  468. 
Monroe   (Ky.)    72,  48  Am.  D.  416; 

69 


^«  172-173  OF  EXTRAORDTNAHY  BAILMENTS. 

a  temporary  lodger  or  stranger,  a  temporary  sojourner  whose 
stay  is  precarious  and  uncertain.  It  may  be  for  a  day,  a  week 
or  a  month,  on  special  terms  or  with  no  advance  agreement,  for 
the  purpose  of  taking  lodging,  refreshment,  or  both.  He  may 
be  a  resident  of  the  same  town  with  the  innkeeper  if  he  comes 
as  a  traveler,  and  not  as  a  neighbor  or  friend.  One  who  comes 
on  a  special  contract  to  board  is  usually  a  boarder,  but  a 
transient  may  inquire  in  advance  the  charge  for  his  entertain- 
ment and  receive  special  rates.  The  only  essential  is  that  he 
be  a  transient  whose  stay  is  more  or  less  temporary  and  uncer- 
tain. 

§  172.    Acceptance  by  the  innkeeper. — A  transient  may 

become  a  guest  before  calling  for  a  room,  or  registering  his 
name,  or  even  entering  the  inn,  though  these  are  the  usual 
steps  taken  by  a  traveler  in  becoming  a  guest.  The  porter  by 
taking  charge  of  his  baggage  at  the  station  may  accept  him  as 
a  guest  for  the  innkeeper.  If  he  intends  to  resort  to  the  inn 
as  such,  the  entertainment  he  receives  may  be  lodging  and 
l)oard,  lodging  alone  or  board  only ;  it  may  be  for  a  single  meal, 
or  merely  for  a  drink  at  the  bar,  though  resorting  to  the  inn 
for  that  purpose  alone  could  scarcely  make  him  a  guest ;  he  may 
change  his  plan  altogether  and  leave  before  receiving  any 
entertainment ;  in  any  of  these  cases,  if  he  went  to  the  inn  for 
entertainment  as  a  transient  and  was  accepted  by  the  innkeeper 
he  became  a  guest.  • 

§  173.     Non-acceptance  as  a  guest. — But  not  every  one 

who  resorts  to  an  inn  is  a  guest.  Regular  boarders,  social 
guests  of  the  innkeeper,  those  attending  a  ball  or  banquet  at 
the  inn,  one  going  to  the  inn  to  carry  on  a  regular  business  or  to 
find  a  safe  depository  for  money,  and  one  resorting  to  the  inn 

§172.     [— ]     Bennett  V.  Mellor,  .5  K.  80;     [— ]   Mowers  v.  Fathers,  61 

T.  E.  27.3;    Read  v.  Amidon,  41  Vt.  N.   Y.   34,   19   Am.   R.    244;     Mason 

15,    98    Am.    D.     .560;     Coskery     v.  v.   Thompson,   9  Pick.    (Mass.)    280, 

Xagle,  83  Ga.  696,  10  S.  E.  R.  491,  20  Am.  D.  471;    Arcade  Hotel  Co.  v. 

20  Am.  St.  R.  333;     [— ]   Dickinson  Wiatt,  44  Ohio  St.   32,  4  N.  E.  R. 

v.  Winchester,  4  Gush.   (Mass.)   114,  398;    58  Am.  R.  785;    [— ]  Curtis  v. 

50  Am.  D.  760;    [— ]   Bowell  v.  De  Murphy,  63  Wis.  4,  22  M.  W.  R.  825; 

Wald,  2  Ind.  App.  303 ;    28  N.  E.  R.  53    Am.    R.    242 ;     Moore    v.    Long 

430.  Beach  Development  Co.,  87  Gal,  48.3, 

§173.      [— ]      Grinnell  v.   Cook,   3  20  Pac.  R.  92,   22  Am.  St.  R.   265; 

Hill    (X.  Y.)   485,   38  Am.  D.  663;  Neal  v.  Wilcox,  4  Jones's  L.  (N.  C.) 

Healey  v.  Gray,  68  Me.  489,  28  Am.  146,  67  Am.  D.  266. 

70 


Ol"   IXXS  AND   IXXKEEPER.S.  §§  174-17»; 

for  an  unlawful  purpose  have  been  held  not  to  be  guests.  One 
sending  his  horse  to  the  inn  stables  but  himself  stopping  with 
a  friend,  has  been  held  to  be  a  guest;  but  this  doctrine  is  very 
generally  criticised.  Unless  he  personally,  or  some  member 
of  his  family  visits  the  inn  for  entertainment  one  is  scarcely 
a  guest. 

§174.  The  duration  of  the  relation.— A  traveler  who  as  a 
transient  riMjuests  entertainment  at  an  inn  and  is  accepted 
becomes  instantly  a  guest.  lie  remains  such  until  the  relation 
is  terminated  by  one  of  the  acts  to  be  later  noticed.  Leaving 
the  inn  for  a  temporary  purpose  does  not  ordinarily  terminate 
the  relation,  nor  docs  the  length  of  time  a  man  remains  at  tlie 
inn  if  he  retains  his  transient  character. 

2.     RroiiTs  AND  Duties  op  the  Parties. 

S  175.  Duty  to  receive. — The  innkeeper  having  taken  upon 
himself  a  public  employment  must  serve  the  public.  His  first 
duty  is  to  receive  indift'erently  to  his  inn  as  guests  such  travel- 
ers as  may  ask  for  entertainment.  He  has  no  general  right  to 
select  his  guests.  This  is  not  the  result  of  a  contract,  but  it  is 
a  duty  imposed  hy  law  for  a  violation  of  which  the  innkeeper 
is  liable  in  such  damages  as  will  compens.ite  the  ti-aveler  for 
the  wrong,  and  punitive  damages  besides  if  there  are  aggravat- 
ing circumstances. 

§  176.     Excuses  for  refusal. — But  the  iiud<eeper  is  not 

bound  to  receive  every  one  who  calls  at  his  inn.  His  duty 
extends  only  to  transients,  who  come  in  proper  condition,  fo;*  a 
proper    purpose,    ready,    able    and    willing    to    pay    for    th<'ir 

§  174.      f— I      GriTiuell  v.  Cook,   3  D.  416;    [—1  Mowers  v.  Fethers,  (31 

Hill    (N.  Y.)    4S.5,   3S   Am.  D.   663;  N.  Y.  34,  19  Am.  R.  :i44 :    Ham-ock 

[—1     Kiston    V.    Hiklebrand,    9    B.  v.  Rand,  94  N.  Y.  1,  46  Am.  R.  111!; 

IMon.     (Ky.)     7l',    48    Am.    I).    416;  [— ]     Pullman    Palace    Cuv    Co.    v. 

[—J  Curtis  V.  Muri)liy.  63  Wis.  4,  I'l'  Smith,  73  111.  360,  1'4  Am.   K.   I'.lS; 

X.  W.  R.  825,  53  Am.  R.  242;    Mc-  |— 1  Curtis  v.  Murphy.  63  Wis.  4.  L'L' 

Daniels  v.  Robinson.  26  Vt.  316,  62  N.  W.  R.  825,  53  Am.  R.  242. 

Am.  D.   574;     Coskery  v.   Nagle,   83  §176.      f— 1      Curtis    v.    Murphy. 

Ga.  696,  10  S.  E.  R.  491,  20  Am.  St.  63    Wis.    4.    22    X.    W.    R.    S25.    .13 

R.  333;    Hancock  v.  Rand.  94  N.  Y.  Am.  R.  242;     |— 1   Mowers  v.   Feth- 

1,  46  Am.  R.  112;    O 'Brien,  v.  Vaill,  ers,   61    N.    Y.    34,    19   Am.    R.    244; 

22  Fla.  627,  1  Am.  St.  R.  219.  At  water  v.  Sawyer.  76   Me.  539.  49 

§175.       1—]       Kisten     v.     Hilde-  Am.  R.  634;    McHugh  v.  S.hloH.ser. 

brand,  9  B.  Mon.  (Ky.)  72,  48  Am.  159  Pa.  St.  480,  28  Atl.  R.  291,  39 

71 


§§  177-170  OF  EXTKAOKDINARY  BAILMENTS. 

keel).  And  they  iniist  take  such  accommodations  as  the  inn 
affords  and  have  no  right  to  demand  admittance  after  the 
accommodations  of  the  inn  are  fully  taken.  The  innkeeper 
owes  no  duty  to  persons  who  are  drunken  and  disorderly,  ot 
affected  with  a  contagious  disease,  who  seek  the  inn  to  expose 
their  commodities  for  sale,  or  resort  to  it  for  an  illegal  pur- 
pose, or  who  are  not  able  to  pay  for  their  entertainment.  But 
he  cannot  negligently  or  wantonly  eject  from  the  inn  one 
already  a  guest  on  the  ground  that  he  is  unfit  to  remain. 

j^  177.  Duty  to  receive  goods. — The  duty  to  receive  the 
goods  of  the  traveler  is  part  and  parcel  of  the  innkeeper's  duty 
to  receive  the  traveler  himself.  Though  the  courts  have  hesi- 
tated to  decide  that  goods  and  money  of  any  value  may  be 
forced  into  the  custody  of  the  innkeeper,  it  is  settled  by  the 
great  weight  of  authority  that  the  traveler  is  not  limited  to  the 
goods  and  money  that  he  needs  for  the  purposes  of  the  jour- 
ney. 

§  178.  Liability  of  innkeeper. — The  duty  of  the  innkeeper 
does  not  end  with  receiving  the  guest  and  his  goods.  Hi^ 
duty  continues  so  long  as  the  transient  remains  a  guest,  or  the 
goods  remain  at  the  inn.  It  now  becomes  our  business  to 
inquire  into  the  nature  and  extent  of  this  liability. 

§  179.  Liability  to  the  guest  personally. — To  the  guest  the 
innkeeper  owes  the  duty  to  provide  proper  accommodations 
and  entertainment  so  long  as  the  relation  endures.  This  in- 
volves keeping  the  inn  in  a  safe  and  sanitary  condition,  pro- 
viding wholesome  food  and  using  all  reasonable  efforts  to  pro- 
tect the  person  of  the  guest  from  harm.  For  unwarranted 
assaults  upon  the  guest  by  himself  or  his  servants  the  inn- 
keeper is  liable  in  damages;  and  he  must  take  all  reasonable 

Am.  St.  R.  699,  ami  compare  Mark-  Tenn.  495,  48  S.'W.  E.  809,  70  Am. 

ham  V.  Brown,  8  N.  H.  523,  31  Am.  St.  R.  693;    Gilbert  v.  Hoffman,  66 

D.  209,  with  State  v.  Steele,  106  N.  Iowa,  205,  23  N.  W.  E.  632,  55  Am. 

C.  766,  11  S.  E.  R.478,  19  Am.  St.  E.  R    263;    Sheffer  v.  Willoughby,  163 

573.  111.  518,  45  N.  E.  R.  253,  54  Am.  St. 

§177.     [— ]     Pullman  Palace  Car  R.   483;     McHugh  v.   Schlosser,   159 

Co.  V.  Smith,  73  111.  360,  24  Am.  R.  Pa.  St.  480,  28  Atl.  R.  291,  39  Am. 

258 ;    Hancock  v.  Rand,  94  N.  Y.  1,  St.  R.  699 ;    Rommel  v.  Schambacher, 

4G  Am.  R.  112;    Mateer  v.  Brown,  1  120  Pa.   St.   579,   11   Atl.   R.   779,  6 

Cal.  221,  52  Am.  D.   303.  Am.  St.  R.  732. 


§  179.      Weeks    v.    McNulty,    101 


72 


OF  IXXS  AM)   INNKEEPERS. 


§§  180-181 


precautions  to  protect  his  guests  from  attack  by  fellow-guests 
or  strangers.  If  he  harbors  drunken  or  vicious  men  he  will  be 
liable  for  the  natural  results.  He  is  not  an  insurer  of  the 
personal  security  of  his  giiest,  but  he  undertakes  to  us.-  reason- 
able care  to  protect  him  from  injury. 

§  180.  Liability  for  goods.— As  to  the-  goods  brought  to  th.- 
inn  by  a  boarder  or  one  not  a  gue.st,  or  by  a  guest  for  show 
or  sale,  and  for  goods  left  in  the  inn  by  a  former  guest  the 
innkeeper  is  an  ordinary  l)ailee  and  subject  to  ordinary  lia- 
bility. But  as  to  the  goods  brought  to  the  inn  by  the  guest 
he  is  an  exceptional  bailee  ^vith  liabilities  whieb  cjill  for  spe- 
cial consideration. 

— Exceptional  liability. — It  is  tiie  duty  of  tlu-  inn- 


§181. 

keeper  not  only  to  receive,  but  to  keep  safely  the  goods  of  his 
guests  so  long  as  they  are  within  the  inn,  infra  haspitium.  De- 
cisions are  not  in  harmony  as  to  the  extent  of  the  innkeeper's 
liability  for  losses  to  the  goods.  Three  rules  have  been  sug- 
gested : 

(1)  That  the  innkeeper  is  prima  facie  liable  for  the  loss  of 
goods  in  his  charge,  but  he  nuiy  excuse  himself  by  showing  tiiat 
he  was  free  from  negligence. 

(2)  That  the  innkeeper  is  excused  if  he  can  show  the  loss 
was  due  to  inevitable  accident  or  irresistible  force. 


§  ISO.  [— ]  Curtis  V.  Murphy,  63 
Wis.  4,  22  N.  W.  R.  825,  58  Am.  R. 
242;  Carter  v.  Hobbs,  12  Mich.  52, 
S3  Am.  D.  762;  Amey  v.  Winches- 
ter, 68  N.  H.  447,  39  Atl.  R.  487,  73 
Am.  St.  R.  614;  Taylor  v.  Downey, 
104  Mich.  532,  62  N.  W.  R.  716,  53 
Am.  St.  R.  472;  [—J  Mowers  v. 
Fathers,  61  N.  Y.  34,  19  Am.  R.  244 ; 
Healey  v.  Gray,  68  Me.  489,  28  Am. 
R.  80;  Arcade  Hotel  Co.  v.  Wiatt, 
44  Ohio  St.  32,  4  N.  E.  R.  398,  58 
Am.  R.  785;  Neal  v.  Wilcox,  4 
Jones's  Law  (N.  C.)  146;  67  Am. 
D.  266 ;  Mateer  v.  Brown,  1  Cal.  221, 
52  Am.  D.  303 ;  Wear  v.  Gleason,  52 
Ark.  364,  12  S.  W.  R.  756,  20  Am. 
St.  R.  186;  Murray  v.  Marshall,  0 
Colo.  482,  59  Am.  R.  152. 

§  181-     [— ]     Sibley  v.  Aklrieh,  33 


N.  TI.  553,  6(3  Am.  D.  745;  [  —  1  Kis- 
ten  V.  Hil.lebrand,  9  B.  Mon.  (Ky.) 
72,  48  Am.  D.  416;  McDaniels  v. 
Robinson,  26  Vt.  316,  62  Am.  0. 
574;  Hulctt  v.  Swift,  33  X.  Y.  571, 
88  Am.  D.  405;  j  — ]  Cutler  v.  Bon- 
ney,  30  Mich.  2.59,  IS  Am.  R.  127; 
[ — ]  Blum  V.  Pullman  Palace  Car 
Co.,  1  Flip.  (U.  S.)  500;  Mateer  v. 
Brown,  1  Cal.  221;  52  Am.  D.  303; 
f— ]  Bowell  V.  DeWal.l.  2  Ind.  App. 
303,  28  X.  E.  R.  430;  Coskery  v. 
Nagle,  83  Ga.  696,  10  S.  E.  R.  491, 
20  Am.  St.  R.  333;  Shaw  v.  Berry.  31 
Me.  478,  52  Am.  D.  628 ;  Pinkerton  v. 
Woodwar.l,  33  Cal.  557.  91  Am.  D. 
657;  Laird  v.  Eichold.  10  Ind.  212. 
71  Am.  D.  323;  Shultz  v.  Wall,  134 
la.  St.  262,  19  Atl.  R.  742,  19  Am. 
St,  R.  686. 


73 


i5§  182-183  O^  EXTEAORDINAEY  BAILMENTS. 

(3)  That  the  innkeeper  is  an  insurer  of  the  goods  against 
all  losses  not  due  to  the  act  of  God,  the  public  enemy,  or  the 
negligence  of  the  guest. 

The  weight  of  authority  is  probably  with  the  last  rule,  but 
the  weight  of  reason  and  the  trend  of  legislation  is  with  the 
second.  In  New  York  after  the  case  of  Hulett  v.  Swift,  the  rule 
was  modified  by  statute  so  as  to  excuse  innkeepers  from  lia- 
bility for  loss  by  accidental  fires. 

§  182.     Exceptions. — The  scope  in  bailment  law  of  the 

terms  act  of  God,  public  enemy  and  negligence  of  the  owner 
will  be  considered  in  connection  with  the  liability  of  the  eom- 
jnon  carrier  (§§  231-240).  For  the  present  it  is  enough  to 
say  that  the  authorities  are  agreed  that  for  losses  due  to 
those  causes  the  innkeeper  is  not  liable,  unless  his  negligence 
contributed  to  the  result. 

If  the  loss  is  caused  by  the  negligence  of  the  guest,  his 
servant  or  companion,  the  innkeeper  is  excused;  but  it  is  not 
as  matter  of  law  negligence  in  the  guest  to  leave  his  door 
unlocked.  The  inn  should  be  safe,  and  if  the  guest's  prop- 
erty is  stolen  by  the  inn  servants,  fellow-guests  or  strangers, 
the  innkeeper  is  liable.  What  constitutes  negligence  of  the 
guest  in  a  given  case  is  a  mixed  question  of  law  and  fact  to  be 
determined  by  the  jury  under  instructions  from  the  court. 

The  effect  of  loss  by  inevitable  accident,  such  as  fire,  or 
superior  force,  such  as  robbery,  is  in  dispute.  By  the  better 
rule  in  such  cases  no  legal  liability  attaches  if  the  innkeeper 
can  prove  that  he  was  free  from  negligence. 

§  183.     Burden  of  proof. — Whatever  the  rule  of  liability 

and  whatever  the  cause  of  the  loss  the  burden  of  proving  that 
he  is  excepted  from  liability  is  on  the  innkeeper ;  the  guest  has 

§  182.     See  cases  cited  in  Sec.  181,  2  Ind.  App.  303,   28  N.  E.  R.  430 ; 

and    Cimningham   v.    Bucky,   42    W.  Sheflfer  v.  Willoughby,   163  111.  518, 

A^a.  671,  26  S.  E.  E.  442,  57  Am.  St.  4  N.  E.  E.  253,  54  Am.  St.  E.  488; 

E.    878;     Epps   v.    Hinds,    27    Miss.  Dunbier  v.  Day,  12  Xeb.  596,  12  N. 

657,  61  Am.  D.  528 ;    [— ]  Murchison  W.  E.  109,  41  Am.  E.   772 ;    Sliultz 

V.   Sergent,   69   Ga.   206,   47   Am.   E.  v.  Wall,  134  Pa.  St.  262,  19  Atl.  E. 

754;     Hadley    v.    Upshaw,    27    Tex.  742,  19  Am.  St.  E.  686;    [— ]    Mur- 

547,  86  Am.  D.  654;    Bead  v.  Ami-  ehison  v.  Sergent,  69  Ga.  206,  47  Am. 

don,   41   Vt.    15;     98   Am.   D.    560;  E.    754;    Carhart    v.    Wainman,    114 

Spring  V.  Hager,  145  Mass.  186,  13  Ga.  632,  40  S.  E.  E.  781,  88  Am.  St. 

N.  E.  E.  479,  1  Am.  St.  E.  451.  E.  45. 

§  183.     [— ]     Bowell  V.  De  Wald, 

74 


OF  INNS  AND  INNKEEPERS.  §§  184-185 

only  to  establisli  liis  loss.  The  law  presumes  that  the  loss  was 
one  for  which  the  innkeeper  was  liable. 

§  184.     For  what  property. — The  extraordinary  liability 

of  the  innkeeper,  as  has  been  seen  (§  180),  extends  only  to 
the  goods  of  the  guest.  And  he  nnist  have  a  general  or 
special  property  in  them;  it  is  enough  if  he  has  the  prop- 
erty as  agent,  servant  or  bailee  of  the  owner.  For  the  goods 
and  money  of  the  guest  within  the  inn  the  innkeeper  is  respf)n- 
sible,  and  he  "is  not  restricted  to  any  particuhir  or  limited 
amount  of  goods  or  money,"  nor  to  goods  or  money  carried 
by  the  guest  for  the  purpose  of  his  journey,  but  he  will  be 
liable  for  goods  of  whatever  kind  that  are  brought  witliin  \\w 
inn  by  the  guest. 

But  the  goods  must  be  within  the  inn,  infra  hoapitiuut.  Th«* 
liability  attaches  to  goods  in  every  part  of  the  inn ;  and  under 
some  circumstances  goods  not  within  the  walls  of  the  house 
but  in  the  yard  or  in  an  adjoining  building,  have  been  held  to 
be  infra  Jwsi^itium.  If  the  innkeeper  or  his  authorized  agi*nt 
assume  control  before  the  goods  reach  the  inn  at  all,  the  goods 
come  within  the  protection  of  the  rule. 

^185. Owner's  custody. — "The  innkeeper's  responsi- 
bility is  co-extensive  with  his  custody  and  control,"  and  he 
may  be  exonerated  if  the  guest  takes  upon  himself  exclusive 
custody  of  the  goods.  But  this  does  not  prevent  the  guest 
from  retaining  possession  of  property  for  his  personal  use 
without  releasing  the  innkeeper  from  his  liability.  The  inn- 
keeper may  provide  a  safe  for  the  deposit  of  valuables  not 

§  184.     Pinkerton  v.  Woodward,  33  \.    Staples,    71    :Me.   316.    30   Am.    R. 

Cal.   557,    91   Am.   D.   657;     Arcade  318,    but    see    contra.    Pettigrow    v. 

Hotel  Co.  V.  Wiatt,  44  Ohio  St.  32,  Barmim,  11  Md.  434,  69  Am.  D.  llli'. 
4    N.    E.    E.    398,    58    Am.    E.    785;  §185.     Weisenger     v.     TayK.r.     1 

[— ]  Grinnell  V.  Cook,  3  Hill  (N.  Y.)  Bush    (Ky.)    27.5,    89    Am.    D.    626; 

485-     38    Am.    D.    663;     Wilkins   v.  [—]  Fay  v.  Pacific  Improvement  Co., 

Earie,  44  N.  Y.  172,  4  Am.  E.  655;  93  Cal.  253,  26  Pac.  R.  1099.  28  Pac. 

Neal  V.  Wilcox,  4  Jones's  Law  (N.  E.  943,  27  Am.  St.  R.  198;  l-]^Pull- 

C.)    146,  67  Am.  D.   266;     Cohen  v.  man  Palace  Car  Co.  v.  Smith,  73  III. 

Manuel,' 91  Me.  274,  39  Atl.  E.  1030,  360,  24  Am.  E.  258;  Bead  v.  Amidon, 

64   Am.   St.   E.   225;    Clute   v.   Wig-  41  Vt.  15,  98  Am.  D.  560;  Vuiu-o  v. 

gins,  14  Johns.   (N.  Y.)   174,  7  Am.  Throckmorton,  5  Bush   (Ky.)  41.  96 

D.   448;    Albin   v.  Presby,   8   N.   H.  Am.  D.  327;   \-^  ^furchison  j.  Scr- 

408,  29  Am.  D.  679;    Epps  v.  Hinds,  gent,  69  Ca.  206,  47  Am.  R.  754. 
27  Miss.  «57,  61  Am.  D.  528;  Minor 

/•) 


,j;  18G-187  ^F  EXTRAORDINAKY  BAILMENTS. 

needed  for  dailv  use,  if  he  does  so  and  informs  his  guests,  then 
he  cannot  be  held  liabh^  in  the  absence  of  negligence  or  the 
wrong  of  his  servants,  for  the  loss  of  such  valuables  if  the  guest 
has  preferred  not  to  entrust  them  to  his  safe  provided  for  the 
purpose  xVnd  uenerally  the  innkeeper  may  be  excused  where 
he  has  been  denied  control;  but  as  to  most  of  the  property 
a  deposit  in  the  room  of  the  guest  in  the  inn  is  a  deposit  with 
the  innkeeper. 

5;  186.     Limitation  of  liability.— By  special  contract  no 

doubt  the  innkeeper,  like  the  common  carrier,  may  limit  his 
liability;  and  so  he  may  Inj  notice  brought  home  to  the  guest  of 
reasonable  rules  and  regulations,  such  as  requiring  the  room  to 
be  securely  fastened  and  valuables  to  be  deposited  in  a  safe 
provided  for  the  purpose.  But  the  guest  must  have  notice  of 
such  regulations  or  they  are  not  binding  on  him. 

By  statute  now  it  is  very  generally  provided  that  the  inn- 
keeper may  protect  himself  by  providing  a  safe  for  the  deposit 
of  certain  valuables,  usually  described  in  the  statute,  and  post- 
ing a  notice  to  the  guests  that  such  valuables  must  be  left  in 
the  safe.  Some  statutes  limit  the  maximum  amount  of  the 
innkeeper's  liability,  and  others  restrict  it  to  money  and 
property  carried  by  the  guest  for  his  purpose  on  the  journey. 
Being  in  derogation  of  the  common  law  these  statutes  are 
strictly  construed  and  must  be  literally  complied  with.  If  the 
statute  requires  notice  to  be  posted  in  the  room  notice  printed 
on  the  hotel  register  will  not  avail;  but  actual  notice  to  the 
guest  is  sufficient. 

The  effect  of  these  statutes  is  to  put  the  burden  of  proving 
the  fault  on  the  guest,  but  they  do  not  excuse  the  innkeeper 
for  losses  due  to  the  wrong  of  himself  or  his  servants.  The 
statutes  requiring  goods  to  be  deposited  do  not  apply  to  articles 
and  money  needed  for  daily  use. 

5;  187.  Compensation  and  lien. — ' '  Compelled  to  afford  enter- 
tainment to  whomsoever  may  apply,  the  law  as  an  indemnity 

§  186.     See    the    statutes    of    the  Wilkins   v.   Earle,   44   N.   Y.   172,   4 

various  states,  also  16  Am.  &  Eng.  Am.  E.  665;  Shultz  v.  Wall,  134  Pa. 

Ency.  of  Law,  541;    [— ]  Murehison  St.  262,  19  Atl.  E.  742,  19  Am.  St. 

V.   Sergent,  69  Ga.   206,  47  Am.   E.  E    686. 

754;   Ramaley  v.  Leland,  43  N.   Y.  §  187.     Cook  v.  Kane,  13  Ore.  482, 

539,  3  Am.  R.  728;  Noble  v.  Milli-  11    Pac.  R.    226,    57    Am.    R.    28; 

ken,   74  Me.   225,  43  Am.  R.   581 ;  [— ]  Grinnell  v.  Cook,  3  Hill  (N.  Y.) 

76 


OF  INNS  AND   INNKEEPERS.  §  188 

for  the  extraordiiiary  liabilities  which  it  imposes,  has  clothed 
the  innkeeper  with  extraordinary  privileges.  It  gives  him  as 
a  security  for  unpaid  charges  a  lien  upon  the  property  of  his 
liuest,  and  upon  goods  put  by  the  guest  into  his  possession. 
Xor  is  the  lien  confined  to  property  only  owned  by  the  guest, 
but  it  will  attach  to  the  property  of  third  persons  for  whom 
the  guest  is  bailee,  provided  only  he  received  the  property  on 
the  faith  of  the  innkeeping  relation.  But  the  lien  will  not  at- 
tach if  the  innkeeper  knew  the  property  taken  into  his  custody 
was  not  owned  by  his  guest,  who  had  no  right  to  deposit  it  as 
bailee  or  otherwise,  except  perhaps  some  projjer  eharge  in- 
curred against  the  specific  chattel." 

But  it  is  said  the  lien  will  attach  to  things  suitable  for  tlu- 
traveler's  luggage,  even  though  the  innkeeper  knew  they  did 
not  belong  to  the  guest.  The  lien  secures  the  entire  charges 
against  the  guest  for  entertainment  and  accommodations  in  the 
inn  of  every  kind,  but  it  avails  only  in  the  case  of  a  guest  and 
not  as  to  boarders.  By  statutes  it  is  now  generally  extended 
to  boarding  and  lodging  house  keepers  as  well  as  innkeepers, 
and  is  made  enforcible  by  a  sale  of  the  goods  according  to 
prescribed  regulations. 

3.       'rERMIN.\.TION  OF   THE  ReL.VTIOX. 

§  188.  How  terminated.— Except  for  cause  that  would  have 
justified  him  in  refusing  to  receive  the  guest  the  innkeeper 
has  no  right  to  terminate  the  relation  after  it  is  established. 
As  he  is  bound  to  receive  so  he  is  bound  to  ke.'p  all  transients 
desiring  entertainment  under  proper  conditions. 

But  the  guest  may  terminate  the  relation  at  will.  WIkmi 
he  pays  his  bill  and  has  his  name  stricken  from  the  hotel 
register  he  ceases  to  be  a  guest.  Temporary  absence  of  the 
guest  from  the  inn  does  not  necessarily  terminate  the  relation, 

485,    38   Am.   D.   663;    Singer    Mfg.  Peeples,    GO    Miss.    S19.    4.")    Am.    H. 

Co.  V.  Miller,  52  Minn.  516,  55  N.  W.  423;   McDaniels  v.  Robinson,  2(5  Vt. 

E    56,   38   Am.   St.   R.   568;    Brown  316,  62   Am.   D.   574;    [—1   tlrinnell 

Shoe  Co.  V.  Hunt,  103  Iowa    586.  72  v.  Cook,  3  Hill  (N.  Y.)  485.  38  Am. 

N.  W.   R.  765.  64  Am.  St.  R.   198;  D.  663;   Adams  v.  Clem,  41  Ga.  65. 

Swan  V.  Bournes,   47   Iowa    501,   29  5  Am.  R.  524;   Murray  v.  Marsliall. 

Am.  E.  492;   Murray  v.  Marshall,  9  9  Colo.  482,  59  Am.  R.  152;  Wear  v. 

Colo.  482,   59  Am.  R.   152.  Gleason,  52   Ark.   364.   12  S.   W.   H. 

§188.     O'Brien   v.   Vaill,   22   Fla.  756,  20  Am.  St.  R.  186. 
627,    1    Am.    St.   R.    219;    Miller   v. 

77 


5-  igg  OF  EXTRAORDINARY  BAILMENTS. 

but  as  soon  as  the  innkeeper  ceases  to  derive  a  profit  for  his 
entertainment  the  relation  of  innkeeper  and  guest  ends.  The 
innkeeper's  liability  for  the  guest's  baggage  does  not  cease 
until  there  has  been  a  reasonable  opportunity  for  the  guest  to 
remove  it. 


78 


§  194. 

(-) 

Kiinl  (if  floods  L-arriol. 

195. 

(4) 

(ustomary    means    and 
route. 

196. 

(^) 

Action  for  refusiil. 

197. 

Illustrations  of  comtnoD  tar- 

rier. 

198. 

•Those  who  are  not  com- 

men  carriers. 

OF   EXTRAORDINARY   LOCATIO    BAILMENTS. 

OF  COMMON  CARRIERS. 

CHAPTER   X. 

OF  COMMON  CARRIERS  OF  (lOODS. 

§  189.     Definition   and   classification. 

190.  Private  carriers. 
Common  carriers  of  goods. 
1.     Nature  of  the  relation. 

191.  The  common  carrier  defined. 

192.  (1)     Public  employment. 

193.  (2)     For  hire. 

§  189.  Definitions  and  Classifications. —  A  carrier  i.s  one  wlio 
undertakes  to  transport  chattels  or  persons  from  place  to  place. 
Various  classifications  may  be  made : 

(a)  Carriers  by  land  and  by  water. 

(b)  Private  carriers  and  public  or  common  carriers. 

(c)  Initial  carriers  and  connecting  carriers. 

(d)  Carriers  of  goods  and  of  persons. 

Carriers  by  land  and  by  water  are  for  the  most  part  subject 
to  the  same  rules,  but  call  for  special  consideration  in  certain 
features  which  will  be  mentioned  as  the  topics  are  reached. 

Carriers  of  goods  undertake  either  the  gratuitous  service  of 
the  mandatum  bailment,  or  the  service  for  hire  of  the  locatio 
operis  mercium  vehendarum  bailment.  Of  the  carriers  for  hire 
private  carriers  are  subject  to  the  general  rules  governing  all 
locatio  bailments;  common  carriers  are  subject  to  those  rules 
and  more.  Because  one  Avho  entrusts  his  property  to  the  car- 
rier is  in  the  nature  of  the  case  so  helpless  to  protect  himself 
against  the  negligence  or  fraud  of  the  carrier,  the  law  imposes 
upon  the  common  carrier  an  exceptional  liability.  The  appli- 
cation of  steam  as  a  motive  power  has  so  increased  the  impor- 
tance of  the  carrier  to  society  that  the  law  of  common  carriers 

79 


^*<  190-191  OF  COMMON  CAERIERS. 

iu  its  extent  and  variety  easily  overshadows  that  of  all  other 
bailments  together. 

Initial  carriers  are  those  to  whom  the  consignor  delivers  his 
goods  for  shipment.  Connecting  carriers  are  any  except  the 
initial  over  whose  lines  the  goods  pass  between  the  initial  place 
and  their  destination.  The  last  of  the  connecting  carriers  is 
called  the  terminal  carrier. 

Carriers  of  goods  are  bailees  and  so  are  properly  considered 
under  the  subject  of  bailments.  Carriers  of  passengers  are  not, 
as  such,  bailees,  but  their  duties  are  very  similar  to  those  of  the 
bailee  and  such  carriers  are  usually  carriers  of  goods  as  well, 
so  that  it  is  convenient  if  not  strictly  logical  to  consider  them 
side  by  side.  Hence  the  title  of  this  work,  ''Bailments  and 
Carriers." 

§  190.  Private  carriers  are  such  as  undertake  by  special 
agreement  in  particular  instances  only  to  transport  goods  or 
passengers  from  place  to  place.  As  they  are  subject  to  no 
exceptional  liabilities  they  call  for  no  further  consideration 
than  that  already  given  them  in  preceding  chapters. 

Common  Carriers  of  Goods. 
1.     The  Nature  of  the  Relation. 

§  191.  The  common  carrier  is  one  who  holds  himself  out  to 
transport  for  hire  the  goods  of  such  as  choose  to  employ  him. 

The  definition  furnishes  the  following  essential  character- 
istics of  the  common  carrier : 

(1)  He  carries  as  a  public  employment. 

(2)  The  carriage  is  for  hire. 

The  law  then  attaches  the  conditions  that : 

(3)  He  must  carry  goods  offered  of  the  kind  he  professes 
to. carry. 

§  190.  HutcMnson  on  Carriers,  Am.  D.  393 ;  [ — ]  Allen  v.  Sack- 
Sec.  35 ;  [— ]  Fish  v.  Cliapman,  2  rider,  37  N.  Y.  341 ;  Shelden  v.  Rob- 
Ga.  349,  46  Am.  D.  393;  [— ]  Allen  inson,  7  N.  H.  157,  26  Am.  D.  726; 
V.  Sackrider,  37  N.  Y.  341 ;  Shelden  [— ]  Hale  v.  New  Jersey  Steam  Nav- 
V.  Robinson,  7  N.  H.  157,  26  Am.  D.  igation  Co.,  15  Conn.  539,  39  Am, 
726;  Samms  v.  Stewart,  20  Ohio  70,  D.  398;  Doty  v.  Strong,  1  Finn. 
55  Am.  D.  445;  Beckman  v.  Shouse,  (Wis.)  313,  40  Am.  D.  773;  Jaek- 
5  Rawle   (Pa.)   179,  28  Am.  D.  653.  son  etc.   Works  v.   Hurlbut,   158   N. 

§  191.     Dwight     V.     Brewster,     1  Y.  34,  52  N.  E.  R.  665,  70  Am.  St. 

Fick.    (Mass.)    50,   11   Am.   D.   133;  Rep.  432. 
[ — ]  Fish  V.  Chapman,  2  Ga.  349,  46 

80 


COMMON   CARRIERS  OF  GOODS.  §§  192-194 

(4)  By  the  means  and  over  tin-  route  he  has  established. 

(5)  An  action  lies  against  him  if  he  refu.ses  without  legal 
justification  to  pei-form  such  carriage. 

v^  192.  (1)  Public  employment. — He  must  hold  him.self  out, 
expressly  or  by  his  conduct,  to  carry  for  all  persons  indiffer- 
ently, and  not  merely  for  particular  persons;  at  any  time  while 
he  is  a  carrier,  and  not  for  special  occasions  only,  as  a  busi- 
ness and  not  as  a  casual  occupation.  It  matters  not  that  he  will 
carry  only  to  a  particular  place  or  by  a  particular  route  or  in 
a  special  method,  nor  that  he  carries  only  d\n-ing  a  limited 
time  or  only  a  certain  kind  of  goods.  If  the  carrier  offers 
his  services  to  the  public  indifferently,  so  long  as  he  has 
facilities,  he  is  a  common  carrier.  If  he  does  not,  he  Ls  a 
private  carrier,  an  ordinary  bailee  for  hire. 

;^  193.  (2)  For  hire. — As  to  certain  goods,  or  on  special 
occasions,  one  Avho  is  a  common  carrier  may  carry  gratui- 
tously, and  as  to  goods  so  carried  he  is  not  a  common  carrier, 
but  a  mandatary  held  to  slight  care.  But  the  common  carrier 
serves  for  reward,  and  if  the  carriage  be  for  any  pecuniary 
advantage,  either  directly  or  indirectly,  the  common  carrier 
assumes  full  liability;  and  that  equally  when  the  compensa- 
tion is  paid  in  advance  and  when  there  is  merely  an  express 
or  implied  promise  to  pay  it,  when  each  part  of  the  service  is 
recompensed  and  when  one  part  is  performed  free  in  order  to 
secure  the  advantage  of  another  part. 

§  194.  (3)  Kinds  of  goods  carried. — To  constitute  <me  a 
common  carrier  it  is  not  essential  that  all  kinds  of  goods  be 

§192.     Nugent  v.  Smith,  1   C.  P.  285,    37   Am.    TX    464.   an.l    Moss   v. 

Div.     27;      [—1     Thompson-Houston  Bettis,  4  Heisk.  (Tcnii.)  661.  13  Am. 

Electric  Co.  v.  Simon,  20  Ore.  60,  25  R.  1. 

Pac.    E.    147,    23    Am.    St.    R.    86 i  §193.     Citizens'     liank    v.     Nan- 

f_]  Fish  V.  Chapman,  2  Ga.  349,  46  tucket   Steamboat   Co..   2   Story    (U. 

Am.  D.  393;  Shelden  v.  Robinson,  7  S.)  16;  Knox  v.  Rives,  14  Ala.  249, 

N.  H.  157,  26  Am.  D.  726;   Self  v.  4S  Am.  D.  97;  Central  Railroa.l  and 

Dunn,   42   Ga.   528,   5   Am.   R.   544;  Banking    Co.    v.    Lampley.    76    Ala. 

I—]   Avres  v.  Chicago  &  N.  W.  Ry.  357,  52  Am.  R.  3.34;   Self  v.   Dunn, 

Co.,  71*  Wis.  372,  37  N.  W.  R.  432,  42  Ga.  528,  5  Am.  R.  544;  [  — 1  Rail- 

5    Am.    St.    R.    226;     I—]    Allen    v.  road  v.  Lockwood.  17  Wall.   (U.  S.) 

Sackrider,  37  N.  Y.  341.  357;    [— ]    Fish  v.   Chapman,   2  Gn. 

For  the  rules  peculiar  to  Pennsyl-  349,  46  Am.  D.  393;^  Pierce  v.  Rail- 

vania   and   Tennessee  see  Gordon   v.  v.ay  Co.,  23  Wis.  387. 

Hutchinson,    1    Watts    &    S.     (Pa.)  §194.     Honeyman     v.     Orc-ur.     \ 

0  81 


^ij  195-197  <^^'  COMMON  CARPvIEKS. 

carried.  If  he  offers  to  carry  only  particular  kinds  he  may 
be  compelled  to  accept  such  tiO„,ls.  l)ut  not  -oods  of  a  sort  he 
does  not  profess  to  carry. 

ij  195.  (4)  Customary  means  and  route.— The  wagoner 
iloes  not  offer  to  carry  by  rail,  nor  the  railroad  by  water;  nor 
need  a  railroad  from  X  to  Y  undertake  to  carry  from  X  to  Z. 
The  law  compels  the  carrier  to  accept  floods  for  carriage  only 
by  the  means  and  over  the  road  to  which  his  business  is  con- 
lined. 

i;  196.  (5)  Action  for  refusal.— As  a  result  of  the  public 
ciiiploynient  of  the  common  carrier  he  is  within  certain  limits 
])oiuul  to  carry  the  goods  of  any  person  offering  to  pay  his 
hire.  If  he  refuse  to  carry  he  is  liable  in  an  action  for  dam- 
ages; and  this  liability  to  be  sued  for  a  refusal  to  carry  has 
been  suggested  as  the  safest  test  of  his  character.  It  seems 
more  logical  to  say  it  is  the  result  of  his  character.  If  it  be 
established  that  he  is  a  common  carrier  then  an  action  lies  for 
a  refusal  to  carry,  but  in  deciding  whether  an  action  lies  it 
must  first  be  determined  whether  he  is  a  common  carrier. 
Once  let  it  be  established  that  he  is  a  common  carrier  and  the 
law  lays  upon  him  the  duty  to  carry  for  all.  To  compel  this 
an  action  lies  against  a  common  carrier  for  refusing  to  per- 
form this  duty. 

§  197.  Illustrations. — It  is  no  test  of  the  common  carrier  that 
he  should  make  regular  trips,  between  fixed  points,  in  any 
particular  kind  of  vehicle,  or  for  any  definite  length  of  time. 

California   R.   E.   Co.,    13   Ore.    352,  Robinson,   7  N.   H.   157,   26  Am.  D. 

10   Pac.   R.    628,    57    Am.    R.     20;  726;    [— ]  Allen  v.  Sackrider,  37  N, 

[— ]     Kansas    Pacific     Ey.     Co.     v.  Y.  341. 

Nichols,  9  Kan.  235,  12  Am.  R.  494;  §  197.  [— ]  Thompson-Houston 
[— ]  Michigan  Southern  &  N.  I.  E.  R.  Electric  Co.  v.  Simon,  20  Ore.  60,  25 
Co.  V.  McDonough,  21  Mich.  165,  4  Pac.  R.  147,  23  Am.  St.  R.  86 ;  Par- 
Am.  R.  466;  Shelden  v.  Robinson,  7  sons  v.  Hardy,  14  Wend.  (N.  Y.) 
N.  H.  157,  26  Am.  D.  726;  [— ]  Fish  215,  28  Am.  D.  521;  Beckman  v. 
V.  Chapman,  2  Ga.  349,  46  Am.  D.  Shouse,  5  Rawle  (Pa.)  179,  28  Am. 
393 ;  [— ]  Thompson-Houston  Elec-  D.  653 ;  Bonce  v.  The  Dubuque  Street 
trie  Co.  v.  Simon,  20  Ore.  60,  25  Pac.  Ry.  Co.,  53  Iowa  278,  5  N.  W.  R. 
R.  147,  23  Am.  St.  R.   86.  177,    36   Am.    R.    221;    Jackson   etc. 

§195.     Hutchinson     on     Carriers,  Works  v.  Hurlbut,  158  N.  Y.  34,  52 

Sec.  56  b.  N    E.   R.   665,   70   Am.   St.  R.   432; 

§  196.     [ — ]     Fish  V.  Chapman,  2  Robertson  v.  Kennedy,  2  Dana  (Ky.) 

Ga.  349,  46  Am.  D.  393;  Shelden  v.  430,  26  Am.  D.  466;  Hayes  v.  Wells, 

82 


COMMON    CARRIERS   OF   GOODS. 


§198 


It  has  beeii  held  that  the  following  are  in  general  common 
carriers:  boatmen,  owners  of  stage  coaches,  omnibuses,  hacks, 
drays  and  express  Avagons,  railway,  express,  street  ear  and 
steamboat  companies.  Local  carriers  of  passengers  like  street 
i-ailways,  hackmen  and  ferrymen,  are  common  carriers  of  the 
baggage  of  their  passengers,  but  not  of  goods  generally  unless 
they  make  a  business  of  receiving  such  goods  for  transporta- 
tion. 

§  198.  Those  who  are  not  common  carriers. — The  follow- 
ing have  been  held  not  to  be  in  general  common  carriers: 
warehousemen,  wharfingers,  forw^arders,  sleeping  car  com- 
panies, telegraph  and  telephone  companies,  postmasters  and 
mail  carriers,  owners  of  towing  boats,  log-driving  and  boom- 
ing companies,  bridge,  canal  and  turnpike  companies.  Xone 
of  these  are  entrusted  -with  goods  for  carriage  in  such  sense 
as  to  make  them  public  carriers.  But  a  common  carrier  can- 
not escape  liability  as  such  by  assuming  some  other  name. 
The  real  test  is  the  nature  of  the  undertaking,  and  any  of  the 
above  may  be  common  carriers  if  as  part  of  their  business  they 
undertake  to  carry  indifferently  for  such  as  choose  to  employ 
them. 


Fargo  &  Co.,  23  Cal.  18.5,  83  Am.  D. 
89;  [ — ]  Christenson  v.  American 
Express  Co.,  1.5  Minn.  270,  2  Am.  R. 
1 22 ;  Levi  v.  Lynn  &  Boston  R.  R.  Co., 

11  Allen  (Mass.)  300,  87  Am.  D. 
713;  [— ]  Clark  v.  Burns,  118  Mass. 
275,  19  Am.  R.  456;  Crosby  v.  Fitch, 

12  Conn.  410,  31  Am.  D.  745; 
[ — ]  Hale  V.  New  Jersey  Steam  Nav- 
igation Co.,  15  Conn.  538,  39  Am. 
D.  398;  Parmelee  v.  Lovritz,  74  111. 
116,  24  Am.  R.  276;  Harvey  v.  Rose, 
26  Ark.  3,  7  Am.  R.  595. 

§  198.     Roberts      v.      Turner,      12 


Johns.  (N.  Y.)  232.  7  Am.  D.  311; 
[ — ]  Pullman  Palace  Car  Co.  v. 
Smith,  73  111.  360,  24  Am.  R.  258; 
Leonard  v.  Hendrickson,  IS  Pa.  St. 
40,  55  Am.  D.  587;  Central  Railroad 
&  Banking  Company  v.  Lamplcy,  76 
Ala.  357,  52  Am.  R.  334;  Mann  v. 
Log  &  Booming  Co..  46  Mich.  38, 
8  X.  W.  R.  550,  41  Am.  R.  141; 
I — ]  Smith  V.  Western  Union  Tele- 
graph Co.,  83  Ky.  104,  4  Am.  St.  R. 
126;  [ — ]  Christenson  v.  American 
Express  Co.,  15  ^linn.  270,  2  Am.  R. 
122. 


83 


OF  COr^IMON  CARRIERS  OF  GOODS. 

CHAPTER  XI. 

2.  OF  THE  RIGHTS  AND  DUTIES  OF  THE  COMMON 
CARRIER. 


§  199. 


200. 


201. 

202. 
203. 
204. 
205. 
206. 

207. 

208. 
209. 
210. 
211. 
212. 
213. 

214. 


215. 
216. 


217. 
218. 


219. 
220. 


Classifieatioii. 

A.     The  common  law  rights 

and  duties  of  the  common 

carrier. 
Various  kinds  of  rights  aiul 

duties. 
(1)     Right  to  compensation. 
Carrier's  right  to  compensa- 
tion. 
Amount  of  compensation. 

Statutory  control. 

Demurrage. 

Discrimination. 

What    discrimiutaion    is 

unlawful. 
Interstate  Commerce 

Act. 

State  Statutes. 

On  what  goods. 

Who  liable  for  freight. 

Carrier's  lien. 

Connecting  carriers. 

Storing    goods    held    on 

lien. 
Goods    shipped    by    one 

not  the  owner. 
(S)     Duty  to  carry  for  all. 
Public  employment. 
Conditions     for     commence- 
ment of  duty. 

(a)  When  liability  as  com- 
mon carrier  begins. 

Delivery  and   acceptance. 
Delivery  where. 

(b)  Evidence     of     accept- 
ance. 

Bill  of  lading. 

Issued   without    goods. 


§  221. 


224. 

225. 
226. 

227. 

228. 

229. 

230. 
231. 
232. 
233. 
234. 
235. 
236. 
237. 

238. 
239. 
240. 
241. 

242. 
243. 

244. 


245. 
246. 
247. 

248. 


As  a  contract. 

Assignability   and   nego- 
tiability. 

Nature. 

Duplicate  bills. 

(3)     Accommodations. 

Suitable    accommodations. 

Sufficient   accommodations. 

Preferences. 

Unusual  demand  for 

facilities. 

-The   Express  eases. 


(4)     Liability  for  loss. 
Common  law  rule. 

Exceptions. 

(a)    Act  of  God. 

Inevitable   accident. 

Proximate  cause. 

-Diligence  of  carrier. 


-(b)    The    public    enemy. 
Negligence     of     the 


(c)   Public  authority. 

(d)   Act  of  shipper. 

Concealing  value. 

(c)    Inherent   nature 


of 


goods. 


-Live    animals. 
-Liability     for 


live 


stock. 
Burden  of  proof. 
(5)      Liability  for  deviation 

and  delay. 
Deviation. 
Delay. 

Eeasonable   time. 

Delay  not  sole  cause  of 

loss. 


84 


RICHTS  OF  (JOMMOX   CARRIER.  §<  199-201 

i^  199.  Classification.— Ill  discussing  the  rights  and  duties  of 
the  common  carrier  a  distinction  is  taken  between 

(A)  The  strict  rules  of  the  common  law,  and 

(B)  The  limited  liability  under  a  special  contract. 

It  is  the  purpose  of  the  present  chapter  to  set  forth  the 
common  law  liability  of  the  common  carrier  of  goods. 

A.     The  Common   Law  Kiuuts  axd  Dlties  of  the  Common 

Carrier. 

S  200.  The  various  kinds  of  rights  and  duties.— Tlie  common 
carrier  has  all  the  rights,  duties  and  liabilities  of  the  ordinary 
bailee  for  hire.  These  have  already  been  sufficiently  consid- 
ered and  will  not  be  repeated.  In  addition  he  has  exceptional 
rights  and  liabilities  which  will  be  considered  as  follows: 

(1)  Right  to  compensation. 

(2)  Duty  to  carry  for  all. 

(3)  Duty  to  furnish  accommodations. 

(4)  Liability  for  loss. 

(5)  Liability  for  deviation  and  delay. 

(1)      Uight  to  Compe)tsatio)i. 

§  201.  Carrier's  right  to  compensation. — The  primary  right 
of  the  carrier  is  that  to  his  reward.  He  may  if  he  choose  de- 
mand this  in  advance  and  refuse  to  accept  the  goods  until  he 
has  received  his  hire  for  their  carriage.  If  however  he  waives 
his  right  to  pre-payment,  then  he  must  fully  p<'rform  his 
service  before  he  can  demand  his  pay,  and  he  is  then  entitled 
to  recover  his  compensation  before  giving  up  possession  of  the 
goods.  Unless  the  carrier  has  in  some  way  fallen  short  of 
performance  of  his  full  duty  the  party  liable  for  the  freiglit 
cannot  secure  the  goods  till  the  payment  of  the  fnll  charges. 
l*ayment  of  the  fr-eiglit  and  delivery  of  the  goods  are  concomi- 
tant acts,  and  the  owner  need  not  tender  the  freight  before 
demanding  the  goods.     It  is  enough  that  he  is  ready  to  pay. 

§201.      I—]      Caloiia     otc.     R.    R.  206,  37  N.  E.  R.  39,  53  Am.  St.  R. 

(  0.   V.   Rae,   18   111.  488,  (58  Am.   D.  385;   Chicago  etc.  R.  R.  Co.  v.  Wol- 

574;   Fitch  v.   Newberry,   1   Douglas  cott,  141  Ind.  267,  39  X.  E.  R.  451, 

arich.)   1,  40  Am.  D.  33;  Wilson  v.  50   Am.   St.    R.   320;    China    Mutual 

(h-and    Trunk    Ry.    Co.,    56    Mo.    60.  Jns.  Co.  v.  Force,  142  N.  Y.  90.  36 

!^6   Am.    D.   435;    |  — I    Illinois    Con-  X.    E.   R.    .S74,  40   Am.   St.   R.   576; 

tral  R.  R.  Co.  V.  Frankonborg,  54  ill.  Adams    v.    Clark.    9    Cush.    (.Mass.) 

88,  5  Am.  R.  92;  Grand  Rapids  etc.  215,  57  Am.  D.  41. 
R.  R.  Co.  V.  Diethor,   10  Ind.  App. 

85 


§§  202-205  OF  COMMON  CAKRIERS. 

§  202.  Amount  of  compensation. — Except  as  controlled  by 
statute  the  rate  fixed  by  the  contract  governs.  It  is  usual  to 
publish  a  schedule  of  rates,  and  the  rate  is  often  specified  in 
the  bill  of  lading,  and  these  if  according  to  the  intention  of  the 
parties  will  govern.  If  there  be  no  contract  then  it  is  im- 
plied that  the  usual  rates  shall  be  paid,  or  in  the  absence  of 
custom,  a  reasonable  rate.  What  is  a  reasonable  rate  is  a 
question  of  fact  for  the  jury. 

§  203.     Statutory  control. — The  common  carrier  is  not 

always  allowed  to  fix  the  amount  of  his  compensation  by  con- 
tract. In  many  of  the  states  statutes  have  fixed  maximum 
rates.  These  statutes  are  valid  unless  they  violate  the  con- 
stitutional provision  against  depriving  the  owner  of  his  prop- 
erty without  due  process  of  law.  This  they  ijaay  do  by 
fixing  the  maximum  rate  unreasonably  low  so  as  to  amount  in 
(effect  to  a  confiscation  of  the  property  of  the  carrier. 

§  204.  Demurrage. — It  is  the  duty  of  the  consignee  to  be 
ready  to  receive  the  goods.  Compensation  to  the  carrier  for 
delay  on  the  part  of  the  consignee  is  called  demurrage.  This 
is  by  law  allowed  to  carriers  by  water  as  reasonable  compen- 
sation for  improper  delay  by  the  consignee.  The  carrier  by 
land  has  no  demurrage  except  by  special  contract  or  by  stat- 
ute. The  reason  for  the  distinction  is  found  in  the  fact  that 
railroad  companies  habitual^  have  warehouses  in  which  they 
discharge  their  freight.  Carriers  by  water  formerly  did  not, 
though  shipments  by  water  are  now  to  a  considerable  extent 
made  by  companies  maintaining  such  warehouses.  In  such 
cases  it  is  apprehended  demurrage  could  be  collected  only  un- 
der a  contract  to  that  effect. 

§  205.  Discrimination  in  charges  was  not  forbidden  at  com- 
mon law.     Provided  the  charges  to  him  were  reasonable  the 

§  202.     [ — ]     Louisville  etc.  Rail-  §  203.      [ — ]      Compare     Munn     v. 

road  Co.  v.  Wilson,  119  Ind.  352,  21  Illinois,  94  U.  S.  113,  with  [— ]  Chi- 

X.  E.  R.   341;   Peters  v.  R.  R.  Co.,  cago,  Milwaukee  &  St.  Paul  Ry.  Co. 

42    Ohio   St.    275,    51   Am.   R.    814;  v.  Minnesota,  134  U.  S.  418,  10  Sup. 

Baldwin  v.  Steamship  Co.,  74  N.  Y.  Ct.  462. 

125,  30  Am.  R.  277;  Killmer  v.  Rail-  §  204.     Hutchinson     on     Carriers, 

road  Co.,  100  N.  Y.  395,  3  N.  E.  R.  473  and  473a;   [— ]  Chicago  &  N.  W. 

293,   53  Am.   R.   194;    [— ]    Cook  v.  Ry.  Co.  v.  Jenkins,  103  111.  588. 

Railway   Co.,    81   Iowa    551,    46    N.  §  205.     [— ]     Seofield   v.    Railway 

W.    R.    1080,    25    Am.    St.    R.    512;  Co.,  43  Ohio  St.  571,  3  N.  E.  R.  907, 

Hutchinson    on    Carriers,    443.  54  Am.  R.  846;  Cleveland  etc.  Rail- 


niGHTS  OF  COMMON  CARRIER.  ^§  206-20.-i 

shipper  could  not  complain  that  goods  were  carried  for  auothcr 
at  a  less  rate.  The  development  of  carriage  by  railway  witii 
the  resulting  power  put  in  the  hands  of  the  carrying  corpora- 
tions to  make  or  ruin  competing  shippers  has  made  the  ques- 
tion one  of  vast  importance.  From  the  eases,  which  are  con- 
flicting in  many  points,  the  following  may  be  deduced : 

For  reasons  of  public  policy  any  discrimination  in  rates  b--- 
tween  shippers  that  is  oppressive  or  unjust,  or  that  has  a  ten- 
dency to  create  a  monopoly,  is  illegal.  .Mere  dilfereuce  in  rat«'s 
is  not  of  itself  unjust  discrimination;  but  a  difference  for  dif- 
ferent shippers  for  transporting  the  same  class  of  goods  und«i- 
like  conditions  is  unjust  and  illegal.  It  amounts  to  unduly 
favoring  one  party  at  the  expense  of  another. 

§  206.    What  discrimination  is  unlawful. — Tin-  cases  are 

not  wholly  reconcilable,  but  by  the  better  opinion  a  iliscrimimi- 
tion  is  unjust  if  it  is  based  merely  on  the  amount  of  freight 
offered,  or  if  it  has  a  tendency  to  destroy  the  trade  of  one  ship- 
per by  giving  a  more  favored  shipper  a  practical  monopoly,  or 
if  a  secret  rebate  is  allowed  certain  shippers.  But  it  is  not 
undue  preference  to  discriminate  between  local  and  through 
freight,  between  a  short  haul  and  a  long  haul. 

§  207.    Interstate  Commerce  Act. — In  the  United  States 

the  Interstate  Commerce  Act  (I8b7j  undertakes  to  regiUate  this 
question  by  prohibiting  as  unlawful  every  unjust  and  unreason- 
able charge;  all  rebates  and  unequal  charges  to  different  per- 
sons for  like  and  contemporaneous  services  under  substantially 
similar  circumstances;  all  undue  and  unreasonable  preferences 
or  advantages;  any  greater  charge  for  a  shorter  than  for  a 
longer  distance,  the  shorter  being  included  within  the  longer 
distance. 

In  England  the  Ivaihvay  and  Canal  Traffic  Act  (,iyr)4,)  pro- 
hibits ''undue  or  luireasonnble  preference  or  advantage  to  or 
in  favor  of  any  particular  person  or  company,  or  any  particular 
description  of  traffic  in  any  respect  whatever." 

§  208. State   statutes. — The   Interstate   Commerce   Act 

way  Co.  V.  Closser,  l:2G  Ind.  348,  12(3  Co.,  S   Vrooin    (N.  J.)    "ilil,   is  Am. 

X.   E.  R.   159,   22   Am.  St.  E.   593;  R.  754. 

I  —  I   Cook  V.  Railway  Co.,  81  Iowa,  §  20l>.       JSco     cases     citoil     iintlcr 

551,  46  N.  W.  R.  1080,  25  Am.  St.  §  205. 

R.  512;   Messenger  v.  Pa.  Eailroatl 

87 


88'>09-"10  OF  COMMON  CARRIERS. 

applies  to  traffic  between  different  states,  but  not  to  transporta- 
tion wholly  within  a  single  state.  The  state  legislatures  have 
very  generally  passed  statutes  touching  this  matter,  often  fixing 
a  maximum  rate.  This  they  have  a  right  to  do  unless  such 
maximum  rate  is  unreasonably  low,  amounting  to  a  confiscation 
of  the  carrier's  property.  A  requirement  that  a  carrier  shall 
do  business  at  less  than  will  yield  a  reasonable  return  on  the 
carrier's  investment  will  be  taking  property  without  due  pro- 
cess of  law,  and  therefore  is  unconstitutional. 

§  209.  On  what  goods.— The  contract  of  affreightment  is  in 
general  held  to  be  indivisible  and  the  shipper  is  liable  for  the 
full  amount  of  the  freight  after  the  carrier  has  accepted  the 
goods  for  immediate  shipment,  or  in  the  case  of  the  carrier  by 
water,  after  the  ship  has  broken  ground  on  the  voyage. 

On  the  other  hand,  the  carrier  is  in  general  entitled  to  freight 
only  on  goods  carried  to  the  destination,  or  in  the  case  of 
connecting  carriers,  to  the  terminal  point  on  his  portion  of 
the  journey.  If  any  waste  occur  en  route  he  will  be  allowed 
freight  only  for  the  portion  delivered,  and  the  loss  from  waste 
may  be  set  off  against  the  freight.  But  if  the  waste  or  failure 
to  deliver  be  due  to  the  fault  of  the  shipper  or  his  consignee, 
or  if  the  contract  call  for  a  lump  freight,  then  full  recovery 
may  be  had,  unless  the  carrier  consent  to  a  pro  rata  freight  for 
the  distance  the  goods  were  carried.  If  the  goods  are  actually 
delivered,  but  are  worthless  for  causes  for  which  the  carrier  is 
not  liable,  he  is  entitled  to  his  full  freight  for  such  goods. 

§  210.  Who  liable  for  freight. — Prima  facie  the  consignee  is 
the  owner  of  the  goods  and  is  therefore  liable  for  the  freight. 
Acceptance  of  the  goods  by  the  consignee  with  knowledge  of 

§209.     [— ]     Gibson  v.  Sturge,  10  Miss.  17,  75  Am.  D.  90;  Hutchinson 

Exch.   622;    Griswold   v.   New   York  on  Carriers,  444-5. 

Ins.  Co.,  3  Johns.  (N.  Y.)  321,  3  Am.  §  210.     Hill  v.  Leadbetter,  42  Me. 

D.   490;    Knight   v.   Providence   and  572,  66  Am.  D.  305;  Wooster  v.  Tarr, 

Worcester  R.   R.   Co.,   13  R.  I.   572,  8  Allen  (Mass.)  270,  85  Am.  D.  707; 

43  Am.  R.  46 ;  China  Mutual  Ins.  Co.  Holt  v.  Westcott,  43  Me.  445,  69  Am. 

V.  Force,  142  N.  Y.  90,  36  N.  E.  R.  D.    74;    Hayward    v.    Middleton,    3 

874,   40  Am.   St.   R.   576;    Dakin   v.  McCord  (S.  C.)  121,  15  Am.  D.  615; 

Oxley,  15  C.  B.   (N.  S.)  646,  109  K.  Barker  v.  Havens,  17  Johns.  (N.  Y.) 

C.    L.    646;    Parsons    v.    Hardy,    14  234,    8    Am.    D.    393;     [— ]    Union 

Wend.  (N.  Y.)  21.5,  28  Am.  D.  521;  Freight   R.   R.   Co.   v.   Winkley,   159 

Hill   V.   Leadbetter,  42   Me.   572,   66  Mass.  133,  34  N.  E.  R.  91,  38  Am. 

Am.  D.  305;   Bennett  v.  Byram,   3S  St.  R.  398. 


RIGHTS  OF  COMMON  (JARRIEB.  §§  I'll  I'll' 

the  essential  facts  carries  with   it  thi-  obligation  t(»   pay  the 
freight  unless  the  consignee  is  known  to  be  a  mere  agent. 

The  presumption  that  the  consignee  is  the  owner  may  be  re- 
butted and  liability  fastened  on  the  consignor  or  a  third  per- 
son. The  carrier  may  always,  in  the  absence  of  any  othrr 
party  to  whom  it  may  look,  demand  the  freight  of  the  con- 
signor, for  he  made  the  contract  of  affreightment  and  is  liable 
if  no  one  else  can  be  hehl.  The  consignee  can  never  be  mad«' 
liable  merely  by  being  made  consignee  without  his  consent. 

§  211.  Carrier's  lien. — The  carrier,  being  compeUed  to  ac- 
cept goods  offered,  has  been  given  l)y  law  :i  lit-n  upon  the  goods 
as  security  for  his  hire.  "This  is  eo-exti'iisivc  with  his  right  to 
claim  and  recover  freight,"  and  accordingly,  except  by  special 
contract  or  established  custom,  the  cari-ier's  lien  is  a  special  and 
not  a  general  one.  It  extends  to  his  charges  and  advances  for 
the  particular  goods  carried,  or  to  the  goods  carried  under  one 
contract,  but  not  to  any  claims  for  demurrage  (»r  warehouse 
charges,  nor  to  damages  suffered  by  the  carrier  through  the 
wrong  of  the  shii)per  or  through  his  failure  to  perform  all  the 
conditions  of  the  bill  of  lading.  The  consignee  may  set  off 
against  the  lien  any  damage  to  the  goods  for  which  the  carrier 
is  liable. 

^  212.     Connecting  carriers. — The  lien  extends  to  all  the 

carrying  charges.  Where  goods  are  shipped  over  the  lines  of 
several  connecting  carriers,  and  the  last  carrier  advances  the 
charges  of  the  preceding  carriers,  he  may  retain  the  goods  until 
his  full  charges  and  advances  are  paid,  unless  he  has  notice 
not  to  pay  such  charges,  or  through  the  bill  of  lading  or  other- 
wise it  appears  that  such  charges  have  been  prepaitl  l)y  the 
shipper. 

§  211.     Dyer  v.  Grand  Trunk   Ry.  Pa.  St.  48.5,  17  Atl.  R.  671.  li'  .\ni. 

Co.,  42  Vt.  441,  1  Am.  R.  350;  Ames  St.  R.  885;    |— 1   Chicago  &   N.   W. 

V.   Palmer,   42   Me.   197,   66  Am.   D.  Ry.    Co.    v.    Jenkins,    108    III.    588; 

271;    [_]    Galena  etc.  Railroad  Co.  Hutchinson  on  Carriers,  47S. 

V.  Rae,  18  111.  488,  68  Am.  D.  574;  §  212.     1  — I      Potts  v.  N.  Y.  &  -\. 

Gregg  V.  Illinois  Central  R.  R.  Co.,  E.  R.  R.  Co.,  131  Ma.ss.  4r,5.  41  Am. 

147  111.  550,  35  N.  E.  R.  343,  37  Am.  R.  247 ;    \—^   Briggs  v.  Boston  vtc 

St.  R.   238;    [— 1   Potts  v.  N.  Y.  &  R.  R.  Co.,  6  Allen    (Mass.)   246.  8.3 

N.  E.  R.  R.  Co.,  131  Mass.  455,  41  Am.   D.  626;    Knight   v.   Providon.-o 

Am.  R.  247 ;  Adams  V.  Clark,  9  Cush.  and   Worcester   R.   R.   Co..    13   K".    I. 

(Mass.)    21.5,  57  Am.  D.  41;   Pcnn-  572,  -13  Am.  R.  46. 
sylvania  R.  R.  Co.  v.  Oil  Works,  126 

89 


^<^  213-215  O*^  COMMON  CAREIERS. 

§  213.  Storing  goods  held  on  lien.— If  the  carrier  ten- 
ders the  goods  and  the  consignee  or  owner  fails  to  pay  the 
charges,  they  may  be  retained  and  delivered  to  a  warehouse- 
man ^f  or  storing.  The  warehouseman  holds  them  as  bailee  of 
the  carrier  and  the  owner,  and  must  not,  except  upon  the  order 
of  the  carrier,  deliver  them  to  the  owner  until  the  carrier  has 
been  paid  his  charges  for  transportation.  The  goods  are  also 
liable  to  the  warehouseman  for  the  charges  of  their  storage. 

js  214.    Goods  shipped  by  one  not  the  owner.— This  lien 

is  good  as  against  tlic  owner,  even  though  the  goods  have  been 
wrongfully  shipped  by  another,  provided  the  owner  had  clothed 
such  other  with  the  indicia  of  ownership,  or  given  him  appar- 
ent authority  to  ship  the  goods.  Where  however  goods  are 
shipped  by  one  without  color  of  right,  by  the  better  opinion  the 
carrier  is  in  no  better  position  than  the  vendee  of  goods  pur- 
chased from  one  having  no  color  of  title.  The  carrier  is  not 
bound  to  carry  the  goods  if  they  are  offered  by  a  wrongdoer, 
and  therefore  in  such  case  has  no  lien  for  his  charges.  No 
man's  property  can  be  taken  from  him  by  another  without  his 
consent. 

The  carrier's  lien  is  prior  to  any  rights  of  the  consignor, 
consignee,  owner,  or  creditors  of  any  of  these.  When  goods 
are  stopped  in  transitu,  or  taken  by  an  officer  under  process, 
the  carrier  may  insist  upon  his  charges  before  giving  possession 
of  the  goods.  The  lieii  however  is  personal  to  the  carrier  and  he 
alone  can  set  it  up  as  a  defence  against  the  owner  who  seeks 
to  recover  his  goods  or  their  worth.  Loss  of  possession  ter- 
minates the  lien. 

(2.)     Duty  to  Carry  for  All. 

§215.  Public  employment. — "A  common  carrier  is  a  pub- 
lic carrier.     He  engages  in  a  public  employment,  takes  upon 

§213.  Gregg  v.  Illinois  Centrar' Mass.  4.j5,  41  Am.  E.  247;  Saltus 
E.  R.  Co.,  147  111.  550,  35  N.  E.  E. "  v.  Everett,  20  Wend.  (X.  Y.)  267, 
343,  37  Am.  St.  E.  238;  Eankin  v.  32  Am.  D.  541;  Ames  v.  Palmer,  42 
Memphis  &  Cincinnati  Packet  Co.,  9  Me.  197,  66  Am.  D.  271;  Pennsyl- 
lleisk.   (Tenn.)  564,  24  Am.  R.  339.      vania  E.   E.   Co.  v.   Oil  Works,   126 

§  214.     Fitch  V.  Newberry,  1  Doug-     Pa.  St.  485,  17  Atl.  E.  671,  12  Am. 
las  (Mich.)  1,  40  Am.  D.  33;  Eobin-      St.  E.  885;   [— ]  Eucker  v.  Donovan, 
son  V.  Baker,  5  Cush.    (Mass.)    137,      ]3  Kan.  251,  19  Am.  E.  84. 
51  Am.  D.  .54;   Hale  v.  Barrett,   26  §215.     See  cases  cited  under  See. 

111.  195,  79  Am.  D.  367;  [— ]  Potts  192,  and  [— ]  New  Jersey  Steam 
V    N.  Y.  &  N.   E.  E.  R.   Co.,   131     Xavigatioo  Co.  v.  Merchants'  Bank, 

90 


DUTIES  OF  COMMON   CABRIER.  §§216-218 

himself  a  public  duty  and  exercises  a  aovt  of  public  office.  He 
is  bound  to  carry  at  reasonable  rates  such  commodities  as  are 
in  his  line  of  business,  for  all  persons  who  offer  them,  as  early 
as  his  means  will  allow.  The  very  definition  of  common  car- 
riers implies  indifference  as  to  whom  they  may  serve,  and  an 
equal  readiness  to  serve  all  Avho  may  apply  and  in  the  order  of 
their  application."  Refusal  to  perform  this  iluty  lays  the  car- 
rier liable  to  an  action  foi-  damages:  oi-  mandanins  will  lie  to 
compel  him  to  serve  all  indifferently. 

§  216.  Conditions  for  commencement  of  the  duty. — Tli.-  pri- 
niary  and  most  characteristic  duty  of  the  coiiiiiinn  carrii-r  then 
is  his  duty  to  carry  for  all  who  offer  ju'oods  luider  pi-oprr  con- 
ditions.   Such  being  his  duty  it  is  imi)ortant  to  determine 

(a)  When  he  has  entered  upon  his  undertaking,  and 

(b)  What  evidence  of  his  undertaking  is  usual  or  in-ci'ssary. 

(a)      WliP)i  Lidbilitij  as  Common  ('(irrii  r  licgins. 

§  217.  Delivery  and  acceptance. — The  duties  and  liabilities 
of  the  common  carrier  as  sueh,  begin  with  the  delivery  of  the 
goods  to  him  or  to  his  authorized  agent,  and  their  acceptance 
for  immediate  transportation.  If  something  yet  remains  to  be 
done  by  the  shipper  the  delivery  is  not  complete  ;ind  the  strict 
liability  of  the  common  carrier  does  not  attach.  Hut  delivery 
cannot  be  affected  l)y  the  fact  that  the  carrier  for  his  own  con- 
venience does  not  immediately  begin  the  transportation. 

§  218. Delivery  where. — The  goods  must  be  delivered 

at  the  place  and  in  the  manner  provided  by  the  carrier,  or  else 

6  How.   (U.  S.)   344;  Fitch  v.  New-  Allen   (:\lags.)   oi'O.  SI   Am.  I).  71s : 

berry,  1  Douglas  (Mich.)   1,  40  Am.  Illinois  Central  R.  R.  Co.  v.  Smy.sor. 

D.  33;   [— ]   HoUister  V.  Nowlen,  19  38     111.     354,     87     Am.     I).     301; 

Wend.   (N.  Y.)  234,  32  Am.  D.  455;  [— ]     Montgomery    etc.    Ry.    C...    v. 

McDuflfee  v.  Railroad  Co.,  52  N.  H.  Kolb,   73   Ala.   396.   49   Am.   R.   54; 

430,  13  Am.  R.  72;    f— ]   Chicago  &  Southern  Express  Co.  v.   Newby.  36 

N.    W.    Ry.    Co.    V.    People,    56    111.  Ga.  635,  91  Am.  D.  783;   FitchburK 

365,    8    Am.    R.    690;    Messenger    v.  etc.     Ry.     Co.     v.     Ilanna.    6    C.ray 

Pennsylvania    R.    R.    Co.,    8    Vroom  (Mass.)   539.  66  Am.  D.  427;    Rail- 

(N.    J.)    531,    18   Am.   R.    754.  way  Co.  v.  Murphy.  60  Ark.  333,  .10 

§217.     Merriam  v.  Hartford  etc.  S    W.  R.  419,  46  Am.  St.  R.  202; 

R.  R.  Co.,  20  Conn.  354,  52  Am.  D.  Ladue  v.  Gritlith,  25   N.  Y.  364,  S2 

344;    Blossom   v.    Gritfin,    13    N.    Y.  Am.  D.  360. 

569,  67  Am.  D.  75;    [—1   Judson  v.  §218.     Merriam    v.   Hartford   .-f.-. 

Western  etc.  Railroad  Corporation,  4  R.  R.  Co.,  20  Conn.  354,  52  Am.  D. 

91 


^  ^  '>19-220  ^I^  COMMON  CARRIERS. 

they  uiiist  be  clclivcrecl  personally  to  his  agent  authorized  to 
receive  them.  Unless  the  carrier  has  established  such  a  cus- 
tom, leaving  the  goods  upon  the  premises,  or  on  the  depot  plat- 
form, is  not  complete  delivery,  nor  is  it  full  delivery  to  deposit 
them  with  an  agent  of  the  carrier  not  authorized  to  receive 
them.  The  shipper  has  a  right  to  regard  those  employed  at  the 
carrier's  usual  place  for  receiving  goods  as  having  ample  au- 
thority to  so  receive  them. 

(h)     Evidence  of  Acceptance. 

§  219.  Bill  of  lading.— No  writing  is  necessary  to  a  complete 
delivery.  When  the  goods  are  properly  deposited  for  transpor- 
tation the  carrier's  liability  begins.  But  it  is  customary  to  en- 
ter into  some  special  contract  of  carriage  by  means  of  what  is 
usually  denominated  a  bill  of  lading,  which  is  both  a  receipt  for 
the  goods  and  a  contract  for  their  carriage. 

The  bill  of  lading  as  a  receipt  is  prima  facie  evidence  of  de- 
livery to  the  carrier  of  a  certain  quantity  of  goods  of  a  certain 
description  and  value,  for  transportation  to  a  consignee  there- 
in named.  But  like  all  receipts  it  can  be  varied  or  contradicted 
by  parol  evidence  of  mistake  or  fraud  as  to  any  or  all  of  its 
terms  descriptive  of  the  goods. 

§  220.    Bill  of  lading  issued  without  goods. — If  the  agent 

of  the  carrier,  conniving  with  the  consignor,  fraudulently  issue 
a  bill  of  lading  without  the  delivery  of  any  goods,  or  of  the 
goods  described,  such  consignor  and  persons  taking  from  him 
with  knowledge  acquire  no  rights  by  force  of  the  bill  of  lading. 

344;    [— ]    Galena  etc.  R.  R.   Co.   v.  Am.    St.    R.    293;     [— ]    Morganton 

Rae,   18   111.   488,    68   Am.   D.    574;  Mfg.  Co.  v.  Ohio  River  etc.  Ry.  Co., 

[— ]  Tate  V.  Yazoo  etc.  Railroad  Co.,  121  N.  C.  514,  28  S.  E.  R.  474,  61 

78  Miss.  842,  29  So.  R.  392,  84  Am.  Am.  St.  R.  679;    [— ]   Louisville  etc. 

St.  R.  649;  Railway  Co.  v.  Murphy,  Railroad  Co.  v.  Wilson,  119  Ind.  352, 

60   Ark.   333,   30   S.   W.   R.   419,   46  21  N.  E.  R.  341. 

Am.  St.  R.  202.  §  220.     [— ]     Friedlander  v.  Rail- 

§  219.     f— ]      Tate   v.    Yazoo    etc.  way  Co.,  130  U.  S.  416,  9  Sup.  Ct. 

Railroad   Co.,   78   Miss.   842,   29   So.  570;  oo/itra,  Bank  of  Batavia  v.  Rail- 

R.  392,  84  Am.  St.  R.  649;  O'Brien  road  Co.,  106  N.  Y.  195,  12  N.  E.  R. 

V.  Gilchrist,  34  Me.  554,  56  Am.  D.  433,     60     Am.     R.     440.       See    also 

676;    [ — ]   Montgomery  etc.  Ry.  Co.  \ — ]   National  Bank  of  Commerce  v. 

V.  Kolb,  73  Ala.  396,  49  Am.  R.  54 ;  Railroad  Co.,  44  Minn.  224,  46  N.  W. 

Sonia  Cotton  Oil  Co.  v.  Steamer  Red  R.  342,  20  Am.  St.  R.  566,  and  cases 

Fiver,  106  La.  42,  30  So.  R.  303,  87  cited  therein. 

92 


DUTIES  OF  COMMON   CARRIEB.  §§  221-222 

AVlu'ther  an  innocent  transferee  of  tin-  bill  of  lading  may  hold 
the  railroad  liable  according  to  the  terras  of  the  bill  of  ladiug 
is  a  disputed  ([iiestion.  By  the  weight  of  authority  he  has  no 
such  right,  for  the  agent  of  the  carrier  acts  within  the  scope 
of  his  authority  in  issuing  a  bill  of  lading  only  when  goods 
have  been  received.  Some  cases  set  forth  strong  r<'asons  for 
holding  the  carrier  liable  on  such  a  bill  of  lading  on  the  ground 
that  he  is  estopped  to  deny  that  his  agent  received  the  goods. 

§  221.  Bill  of  lading  as  a  contract. — The  effect  of  stipu- 
lations in  a  bill  of  lading  limiting  the  carrier's  liability  will  be 
considered  in  another  chapter.  It  is  important  here  to  notice, 
that  like  other  written  contracts  it  is  a  merger  of  prior  and  con- 
temporaneous agreements  of  the  parties,  and  in  the  absence  of 
fraud  or  mistake  its  terms  may  not  be  varied  or  contradicted 
by  parol  evidence  of  an  oi-al  agreement. 

§  222.    Assignability  and  negotiability  of  bill  of  lading. 

— A  bill  of  lading  is  a  (piasi-uegutiable  insli-ument.  ll  is  negotia- 
ble in  that  it  is  transferred  by  indorsement  and  delivery,  but 
in  other  respects  it  is  non-negotiable.  The  a.ssignment  of  a  bill 
oL'  lading  indorsed  thereon  passes  to  the  assignee  at  once  the 
title  to  the  goods  represented  by  the  bill  as  completely  as  by 
delivery  of  the  goods  themselves.  But  as  against  third  persons 
the  assignee  acquires  the  title  of  the  assignor,  no  more,  no  less; 
he  takes  subject  to  all  the  equities  that  would  have  availed 
against  his  assignor.  As  between  the  parties  mere  delivery 
of  the  bill  without  indorsement  with  the  intention  to  pass  title 
is  a  good  transfer  of  the  goods. 

Statutes  in  some  states  declare  bills  of  lading  to  be  negoti- 
able. Such  statutes  are  strictly  construed,  and  are  held  not  to 
change  the  character  of  the  instrument,  but  to  prescribe  the 
mode  of  transfer  by  indorsement  like  negotiable  instruments. 

§  L'lil.     [— ]      .Moigauton  Mfg  Co.  v.  Railway  Co.,  130  U.  8.  41(5.  !•  Sup. 

V.  Ohio  River  etc.  Ry.  Co.,  121  N.  C.  Ct.   570;    Burton   v.   Curyoa,   40   III. 

514,  28  S.  E.  R.  474,  61  Am.  St.  R.  320,   89  Am.   D.   350;    Missouri   Pa- 

679;   Louisville  etc.  Railroad  Co.   v.  cifio  Ry.  Co.  v.  Heiilcnlioimer,  82  Tpx. 

Wilson,   119   Ind.   352,   21   N.   E.   R.  195,    17   S.   W.    R.   608,   27   Am.  St. 

341 ;  Sonia  Cotton  Oil  Co.  V.  Steamer  R.    861;     [  — ]     National     Bank     ..f 

Red   River,    106   La.   42,    30    So.    R.  Commerce  v.  Railroad  Co.,  44  Minn. 

303,  87  Am.  St.  R.  293.  224,  46   X.   W.   R.   342,   20  Am.  St. 

§222.  [— ]  Shaw  v.  Railroad  R.  566.  See  also  Se<'tion  151.  tmtc. 
Co.,  101  U.  S.  557;   [—1  Friedlau.lrr 

93 


S?  223-225  OF  COMMON  CARRIERS. 

<  223 Nature  of  bill  of  lading.— This  grows  out  of  the 

nature  of  a  bill  of  lading.  It  is  a  mere  symbol,  a  representative 
of  the  property,  a  substitute  for  the  goods  and  not,  like  nego^ 
tiable  paper,  a  representative  of  money.  When  properly  in- 
dorsed and  delivered  for  the  purpose  of  transferring  the  title 
to  the  property  it  amounts  to  a  constructive  delivery  of  the 
.^oods  themselves.  The  carrier  must  respect  such  a  transfer  if 
properly  made,  and  deliver  the  goods  according  to  the  indorsed 
oi'der. 

^  224.     Duplicate  bills.— It  is  a  common  practice  for  the 

consignor  to  ship  to  himself  as  consignee,  taking  duplicate 
lulls  of  lading.  One  he  sends  unendorsed  as  notice  of  the  ship- 
ment to  the  real  consignee ;  the  other  he  endorses,  attaches  to  it 
a  draft  on  the  real  consignee  and  sends  the  endorsed  bill  of 
hiding  and  draft  to  a  bank  in  the  city  to  which  the  goods  are 
consigned,  with  directions  to  the  bank  to  deliver  the  endorsed 
bill  of  lading  upon  payment  of  the  draft. 

If  the  carrier  delivers  the  goods  upon  presentation  of  the 
duplicate  unindorsed  bill  of  lading  it  is  liable  to  the  consignor 
in  case  of  loss.  And  this  is  true  even  where  the  vendee  with- 
out paying  the  draft  has  fraudulently  obtained  the  indorsed 
bill  of  lading,  since  he  thereby  obtained  no  title.  The  carrier 
is  justified  in  delivering  only  upon  presentation  of  the  original 
indorsed  bill  of  lading  by  the  vendee  after  he  has  paid  the 
attached  draft. 

(3)     Duty  to  FiirnisJi  Accommodations. 

§  225.  Suitable  accommodations.— Before  the  day  of  rail- 
roads common  carriers  might  furnish  such  accommodations  as 
they  chose,  provided  they  were  safe  and  suited  to  the  under- 

§223.  [— ]  Shaw  v.  Eailroad"!  573,  39  N.  W.  E.  899,  9  Am.  St. 
Co.,  101  U.  S.  5.57;  Weyaml  v.  Atchi- **■  E.  504. 

son,  Topeka  &  Santa  Fe  Ey.  Co.,  75  §  225.  Hutcliinson  on  Carriers, 
Iowa  573,  39  N.  W.  E.  899,  9  Am.  292-295d;  [— ]  Chicago  &  N.  W. 
St.  E.  504;  [— ]  Friedlander  v.  Eail-  Eailway  Co.  v.  People,  56  111.  365, 
way  Co.,  130  IT.  S.  416,  9  Sup.  Ct.  8  Am.  E.  690;  Wood  v.  C,  M.  & 
570,  The  Idaho,  93  U.  S.  575.  vSt.  P.  Ey.  Co.,  68  la.  491,  56  Am. 

§  224.  The  Thames,  14  Wall.  (U.  E.  861 ;  Le  Barron  v.  East  Boston 
S.)  98;  [— ]  Shaw  v.  Eailroad  Co.,  Ferry  Co.,  11  Allen  (Mass.)  312,  87 
101  U.  S.  557;  Weyand  v.  Atchison,  Am.  D.  717;  Beard  v.  Illinois  Cen- 
Topeka  &  Santa  Fe  Ey.  Co.,  75  Iowa     tral  Eailroad  Co.,  79  la.  518,  44  N. 

W.  E.  800,  18  Am.  St.  E.  381. 

94 


DUTIES  OF  COMMON  CARRIES.  §§  226-228 

taking  the  carriers  professed  th'-inselves  ready  to  perform.  But 
the  railroad  is  a  (luasi-puhlie  eoi-poration  exereisinjr  the  ri^rht 
ol'  eminent  domain.  It  exists  under  a  charter  {rranting:  large 
privik^ges  and  in  turn  exacting'  unusual  services.  While  it  is 
not  compelled  to  receive  danjrerous  ^roods.  or  merchandise  un- 
suitable for  shipment,  yet  it  is  compelled  to  provide  suitable 
accommodations  for  the  transportation  of  every  artielc  of  com- 
merce. Its  vehicle  must  be  safe  and  suitable  for  the  busini'ss. 
Open  cars  for  carryin<»-  stock,  refri<rerator  cars  for  fruit  and 
perishable  goods,  and  i)i'oper  stational  facilities  as  well,  the 
law  requires  the  railroad  to  provide,  and  it  iinist  keej)  pii<-e  willi 
the  march  of  progress. 

§  226.  Sufficient  accommodations. — The  wa^'oner  at  ih" 
early  common  law  might  provide  as  much  or  as  little  accommo- 
dations as  he  pleased.  lie  could  not  be  compelled  to  accept 
goods  for  transportation  beyond  his  facilities.  The  railroad 
however  must  furnish  facilities  sufficient  to  accommodate  .such 
traffic  as  should  reasonably  be  anticipated.  This  does  not  imply 
that  it  must  at  all  times  have  facilities  to  respond  at  once  to  an 
unusual  and  unexpected  press  of  business. 

§  227.  Preferences. — "The  very  definition  of  a  common  car- 
rier excludes  the  right  to  grant  monopolies  or  to  give  special 
or  unequal  preferences.  It  implies  indifference  as  to  whom  he 
may  serve  and  an  equal  readiness  to  serve  all  who  may  api)ly 
and  in  the  order  of  their  application." 

§  228.     Unusual  demand  for  facilities.— If  a  shii»i)er  a|>- 

plies  for  cars  the  railroad  is  not  required  to  furnish  them  at 
once  if  it  can  be  done  only  by  depriving  other  shippers  of  their 
facilities.    One  shipper  and  one  town  have  no  right  to  demand 

§226.     [— ]     Ayres  v.  Chicago  &  188,  2  Am.  R.  IH  ;    |— ]   Xi-w  .Forsey 

N.  W.  Ry.  Co.,  71  Wis.  372,  37  N.  Steam  Navigation  Co.  v.  Merdiants' 

AV.    R.   432,     5     Am.     St.     R.     226;  Bank,    6    How.    (U.    S.)    344:    Mi- 

[—1  Galena  etc.  Railroad  Co.  v.  Rae,  Duffee    v.    Railroad    Co.,    52    N.    H. 

18  111.  488,  68  Am.  D.  574;  Ballon-  4.30,    13    Am.    R.    72;    MessenKor    v. 

tine  V.  Railroad  Co.,  40  Mo.  491,  93  Pennsylvania  Railroad  Co..  8  Vrooiu 

Am.  D.  31.5;  Chicago  etc.  R.  R.  Co.  (N.  .].)  531,  18  Am.  R.  754. 

V.  Woleott,  141  lud.    267,  39  N.  E.  §  228.     See   the  cases  cited   under 

R.  451,  50  Am.  St.  R.  320;   [—1  HU-  Sec    226   and   Harrison   v.    Miiwouri 

nois  Central  Railroad  Co.  v.  Franken-  Pacific  Railway  Co..  74  Mo.  .164.  41 

berg,  54  111.  88,  5  Am.  R.  92.  Am.  R.  318;  Michigan  Contra!  R.  K. 

§  227.     New  England  Express  Co.  Co.  v.  B\irrows.  33  Mich.  6. 
V.   Maine   Central   Railroad,   57   IMe. 

95 


§§229-230  OF  COMMON  CARRIERS. 

service  at  the  expense  of  another  shipper  and  another  town. 
The  railroad  is  bound  to  serve  all  fairly  and  in  turn,  but  if  it 
is  unable  Avithin  a  reasonable  time  to  provide  the  facilities 
called  for,  it  is  liable  to  the  shipper  in  damages  if  it  fails  to 
notify  him  Avhether  his  cars  can  be  furnished;  and  in  any  case 
it  will  bo  liable  if  its  failure  is  due  to  lack  of  facilities  adequate 
to  do  the  business  it  had  reason  to  anticipate.  If  the  railroad 
contracts  to  furnish  cars  it  is  bound  to  do  so  according  to  the 
terms  of  the  contract.  A  local  freight  agent  has  implied  au- 
thority to  make  such  a  contract. 

^  229.     The  Express  Cases. — The  State  Courts  in  several 

cases  decided  that  to  grant  one  express  company  exclusive  ac- 
commodations and  privileges  on  its  passenger  trains  for  carry- 
ing on  an  express  business  was  an  unlawful  preference,  and 
that  another  company  denied  such  privilege  had  an  action  for 
damages  against  the  railroad  corporation. 

But  in  The  Express  Cases  the  Supreme  Court  of  the  United 
States  decided  that  railroad  companies  were  not  common  car- 
riers of  express  companies.  Their  duty  was  to  furnish  the 
public  at  large  with  express  facilities  adequate  to  insure  rea- 
sonable promptness  and  security,  and  they  could  not  be  com- 
pelled to  furnish  to  all  independent  express  companies  equal 
facilities  for  doing  business  upon  their  passenger  trains.  This 
is  now  the  settled  rule. 

(4)     Liability  for  Loss. 

§  230,  Common  law  rule. — The  common  carrier  is  with  cer- 
tain exceptions  an  insurer  of  the  safe  delivery  of  the  goods  en- 
trusted to  him. 

The  rule  finds  its  reason  in  the  opportunities  for  collusion 
and  fraud  by  which  the  owner  may  be  deprived  of  his  goods 

§229.     [— ]     The   Express   Cases,  v.  Lockwood,  17  Wall.   (U.  S.)   357; 

117   U.   S.   1,   6   Sup.   Ct.   542;    and  [ — ]   New  Jersey  Steam  Navigation 

compare  New  England  Express  Co.  Co.  v.  Merchants'  Bank,  6  How.  (U. 

V.    Maine   Central   Railroad   Co.,    57  S.)  344;  Fitch  v.  Newberry,  1  Doug- 

Me.  188,  2  Am.  R.  31,  and  McDuffce  las     (Mich.)     1,     40     Am.     D.     33; 

V.  Railroad  Co.,  52  N.  H.  430,  13  Am.  [—1    Christenson    v.    American    Ex- 

R.  72.  press  Co.,   15   Minn.   270,   2   Am.   E. 

§230.     [— ]     Hollister  V.  Nowlen,  :!22;    [—J    Illinois  Central  Railroad 

19  Wend.    (N.  Y.)    234,   32  Am.   D.  Co.    v.    Frankenberg,    54    111.    88,    5 

455;    [ — ]    Fish  v.   Chapman,   2   Ga.  Am.  R.  92;  Willock  v.  Pennsylvania 

349,  46  Am.  D.  393;    [— ]   Railroad  Railroad    Co.,    166   Pa.    St.    184,    30 

96 


DUTIES  OF  COMMON  CAEBIER.  §§  231-232 

while  they  are  beyond  his  sijjrht  and  control,  and  entrusted  to 
the  sole  keeping  of  the  carrier.  Thou<;h  robber  bands  no  longer 
infest  the  highways,  and  the  business  of  carrying  goods  is  as 
thoroughly  systematized  in  its  methods  as  it  is  vast  in  its  pro- 
portions, yet  every  relaxation  of  the  rigor  of  the  old  common 
law  rule  has  been  attended  with  such  evils  as  abundantly  to 
justify  its  wisdom.  And  it  is  now  well  settled  that  only  by 
special  contract  can  the  carrier  be  relieved,  and  bj'  statute  in 
some  states  even  this  means  of  restricting  bis  li;i])ility  is  denied 
him, 

§  231.  Exceptions. — According  to  the  early  cases  the  com- 
mon carrier  is  an  insurer  of  the  goods  against  all  losses  except 
those  arising  from 

(a)  The  act  of  God. 

(b)  The  public  enemy. 
To  these  have  been  added 

(c)  The  act  of  public  authority. 

(d)  The  act  of  the  shipper. 

(e)  The  inherent  nature  of  the  goods  themselves. 

Unless  the  loss  be  due  to  one  of  these  exceptions  the  carrier 
cannot  excuse  himself  from  liability  by  showing  that  the  loss 
was  inevitable,  that  he  was  entirely  free  from  negligence,  or 
that  he  had  exercised  the  utmost  possible  human  diligence  and 
foresight.    He  is  absolutely  liable. 

§  232.  (a)  Act  of  God. — The  cases  do  not  agree  in  detining 
the  act  of  God.  By  the  better  opinion  it  does  not  depend  upon 
the  violence  of  the  force,  but  it  must  be  a  force  due  to  physical 

Atl.    R.    948,    45    Am.    St.    R.    674;  Brent,    V2    Md.    9,    71    Am.    D.    582; 

[ — ]     Hale    V.    New    Jersey    Steam  Wolf   v.   American    Express   Co.,   43 

Navigation    Co.,    15    Conn.    539,    39  Mo.    421,   97   Am.    P.    406;    Colt    v. 

Am.   D.   398;    Rixford   v.   Smith,   52  McMechen,   6   Johns.    (N.    Y.)    160, 

N.  H.  355,  13  Am.  R.  42;   [— ]  Hart  5  Am.  D.  200;  Transportation  Co.  v. 

V.  Chicago  etc.  Railway  Co.,  69  la.  Tiers.  4  Zab.    (N.  J.)   697.  64  Am. 

485,  29  N.  W.  R.  597.  D.    394;      Wald    v.     Pittsburg    etc. 

§231.     See  cases  cited  under  Sec.  Railroad  Co.,  162  111.  545.  44  N.  K. 

230,  and  AgneAv  v.  Steamer  Contra  R.  888,  53  Am.  St.  R.  332;  Long  v. 

Costa,  27  Cal.  426,  87  Am.  D.  87.  Pennsylvania  Railroad   Co..   147   Pa. 

§  232.     r— 1     Forward  v.  Pittard,  St.  343,  23  Atl.  R.    159.  ."W  Am.  St. 

1    T.    R.    27;     1—1    Railroad   Co.    v.  R.    732;     McCraw    v.    Baltimore    & 

Reeves,  10  Wall.   (U.  S.)   176;   Mer-  Ohio  R.  R.  Co.,   18  W.   Va.  .^61,  41 

ritt  V.  Earle,  29  N.  Y.  115,  86  Am.  Am.   R.   696;    Rixford   v.   Smith,  5'! 

D.     292;     McArthur     v.     Sears,     21  X.  H.  355,  13  Am.  R.  42.     Coinpnrr 

Wend.    ex.    Y.)    190;    Fergusson    v.  Michaels  v.  New  York  Central  Rail- 

"  97 


<-<  '>33-235  ^^^  COMMON  CAEEIEES. 

causes,  without  the  interposition  of  human  agency.  Examples 
are,  losses  caused  by  lightning,  freshets,  earthquakes,  frost,  rain 
and  snow  storms,  unpreeedented  wind  and  other  actions  of  the 
elements. 

^  233.    ' Inevitable  accident  includes  the  act  of  God  but 

is  not  synonymous  with  it,  for  inevitable  accident,  vis  major, 
or  irresistible  force,  may  be  due  to  human  agency.  Such  are 
losses  by  fire  (not  caused  by  lightning),  by  robbery  and  theft, 
by  decayed  timbers  in  a  bridge,  by  a  strike,  by  a  sunken  mast, 
by  false  lights  or  a  drifted  buoy.  For  loss  by  any  of  these 
means,  though  no  human  force  could  have  prevented  it,  the 
carrier  is  liable. 

^  234.     Proximate  cause. — Not   only   must  the   loss  be 

caused  by  the  act  of  God  but  that  must  have  been  the  proximate 
cause.  If  some  human  agency  has  intervened  the  carrier  is 
not  excused  unless  the  human  agency  was  so  connected  with 
the  act  of  God  that  all  amounted  to  one  act. 

I  235.     Diligence  of  carrier. — Loss  from  disaster  due  to 

the  force  of  the  elements  which  no  human  foresight  could  have 
prevented  it  has  been  seen  is  not  chargeable  to  the  carrier.  But 
this  implies  not  merely  that  the  loss  was  caused  by  the  act  of 
God  but  that  it  could  not  have  been  prevented  by  the  carrier. 
Overtaken  by  the  act  of  God  the  carrier  will  still  be  liable 

road  Co.,  30  N.  Y.  564,  86  Am.  D.  v.   Baltimore   &   Oliio   Eailroad   Co., 

415,  and  Hays  v.  Kennedy,   41   Pa.  IS  W.  Va.  361,  41  Am.  E.  696.  Com- 

St.  378,  80  Am.  D.  627.  pare  Eead  v.  Spalding,  30  N.  Y.  630, 

§  233.     Merritt  v.  Earle,  29  N.  Y.  86  Am.  D.  426,  with  Denny  v.  New 

115,   86   Am.   D.   292;    Fergusson   v.  York  Central  Eailroad  Co.,  13  Gray 

Brent,   12   Md.   9,   71   Am.   D.   582;  (Mass.)    481,    74   Am.    D.    645. 
McArthur    v.    Sears,    21   Wend.    (N.         §235.     [— ]     Eailroad       Co.       v. 

Y.)     190.      But    compare    Hays    v.  Eeeves,  10  Wall.    (U.  S.)    176;   Nu- 

Kennedy,  41  Pa.  St.  378,  80  Am.  D.  gent   v.   Smith,   I..   E.    1   C.   P.   Div. 

627,  with   [ — ]   Fish  v.   Chapman,   2  423;  Blythe  v.  Eailway  Co.,  15  Colo. 

Ga.  349,  46  Am.  D.  393.  333,  25  Pac.  E.  702,  22  Am.  St.  E. 

§  234.     Merritt    v.    Earle,    29    N.  403 ;   Smith  v.  Western  Eailway,  91 

Y.   115,   86  Am.  D.  292;   Fergusson  Ala.  455,  8  S.  E.  754,  24  Am.  St.  E 

V.  Brent,  12  Md.  9,  71  Am.  D.  582;  929;    Hays   v.   Kennedy,   41   Pa.   St 

Blythe  v.  Eailway  Co.,  15  Colo.  333,  378,  80  Am.  D.  627 ;  Wolf  v.  Ameri 

25  Pac.  E.  702,  22  Am.  St.  E.  403 ;  can  Express  Co.,  43  Mo.  421,  97  Am 

Wolf   V.   American   Express   Co.,   43  D.    406;     McGraw    v.    Baltimore    & 

'Mo.    421,    97    Am.    D.    406;    Trans-  Ohio  Eailroad   Co.,   IS   W.   Va.   361 

portation   Co.   v.   Tiers,   4   Zab.    (N.  41  Am.  E.  696. 
J.)    697,    64   Am.   D.    394;    McGraw 

98 


DUTIES  OF  COMMON  CARRIER.  §§  23G-238 

unless  he  uses  all  reasonable  care  in  the  sudden  emergency  to 
save  the  goods.  This  care  is  not  the  utmost  care  which  human 
sagacity  could  suggest,  but  that  of  the  ordinarily  prudent  man 
confronted  by  such  conditions. 

§  236.  (b)  The  public  enemy  imans  an  enemy  of  the  coun- 
try with  Avhom  the  nation  is  at  war,  and  piratfs  who  are  said 
to  be  the  enemies  of  all  mankind. 

It  does  not  include  mobs,  rioters,  robbers,  strikers  and  in- 
surgents. These,  although  common  enemies  of  the  country,  are 
not  technically  pu})lic  enemies  and  loss  by  them  will  not  <'Xcu.se 
the  carrier.  An  insurrection  however  may  ripen  into  a  rebel- 
lion or  a  revolution,  so  that  a  state  of  open  war  cxi.sts,  and  then 
insurgents  become  public  enemies. 

§  237.  Negligence  of  the  carrier. — The  carri^-r  lias  al- 
ways been  exempt  from  liability  for  losses  due  to  the  public 
enemy,  but  as  in  the  case  of  the  act  of  God,  it  must  appear  that 
the  public  enemy  was  the  proximate  cause  of  the  loss  and  that 
it  could  not  have  been  averted  by  ordinary  care  on  the  part  of 
the  carrier. 

§  238.  (c.)  Public  authority. — "If  the  carrier  is  excusable 
for  yielding  to  a  public  enemy  he  cannot  be  at  fault  for  yield- 
ing to  actual  authority  what  he  may  yield  to  usurped  authority. 
Whatever  his  duty  to  resist  a  forcible  seizure  without  j^rocoss 
he  cannot  be  compelled  to  assume  that  regular  process  is  illegal, 
and  to  accept  all  the  consequences  of  resisting  officers  of  the 
law." 

He  will  be  relieved  of  liability,  therefore,  if  without  his 
fault  the  goods  are  destroyed  by  the  police  power  of  the 
state,  or  if  they  are  taken  by  legal  process  fair  upon  its  face, 
when  issued  against  the  owner  of  the  goods.  The  shipper 
should  at  once  be  notified  of  the  seizure  so  that  he  may  have 
an  opportunity  to  appear  and  defend.  A  seizure  under  void 
process  is  no  defence  to  the  carrier. 

§  236.      [—1      Coggs    V.    Bernard,  §  i!3S.     [—1     Pingrcc  v.  Railroad 

£  Ld.  Eay.  909,  1  Sm.  L.  Cas.  199;  Co..  66  Mich.  143,  33  X.  \V.  R.  -JPS. 

Southern  Express  Co.  v.  Womack,  1  11    Am.   St.   R.   479;    [—1    Stiles   v. 

Heisk.  (Tenn.)  256;  Clark  V.  Pacific  Davics,     1     Black.      (U.     S.)     101; 

Railroad  Co.,  39  Mo.  184,  90  Am.  D.  |— 1    Bennett   v.   American   Express 

458;     Lewis    v.     Ludwick,    6    Cold.  Co.,  S3  Me.  236,  22  Atl.  R.  159,  2?. 

(Tenn.)    368,   98   Am.   D.   454.  Am.  St.  R.  774;  Hutchinson  on  Car- 

§237.     Clark    v.    Pacific    Railroad  liers  21()b-210c,  396-400. 
Co.,  39  Mo.  184,  90  Am.  D.  458. 

99 


^  <  039.042  01^  COMMON  CAKRIERS. 

^239.  (d.)  Act  of  the  shipper.— For  his  own  fraud  or 
fault  none  may  hold  another  liable.  If  the  shipper  improperly 
l)aek  or  mark  the  s'oods  in  sueh  manner  that  it  is  not  ap- 
l)arent  to  the  earrier,  or  if  he  load  them  himself  and  assume 
charge  of  them  on  the  journey,  or  if  he  pack  them  so  as  to 
conceal  from  the  carrier  their  true  value  and  character,  he  can- 
not hold  the  earrier  liable  for  loss  due  to  his  own  act.  To 
excuse  the  carrier  however  it  must  appear  that  he  was  free 
from  negligence. 

§  240.     Concealing  value.— The  shipper  is  not  in  general 

required  to  reveal  the  value  of  goods  shipped.  But  if  the 
carrier  asks  the  value  and  he  fails  to  reveal  it,  he  cannot  hold 
the  carrier  liable  beyond  the  amount  made  known.  And  if  the 
shipper  disguise  the  box  or  package,  whether  intentionally  or 
not,  so  as  to  conceal  the  true  value  of  the  goods,  and  the  car- 
rier is  thereby  led  to  use  less  care  than  goods  of  such  value 
demand,  the  shipper  must  bear  the  consequences.  If  he  wishes 
the  carrier  to  assume  full  liability  he  should  give  notice  so  that 
due  care  may  be  exercised,  and  proper  compensation  charged 
for  the  added  risk. 

§  241.  (e.)  Inherent  nature  of  the  goods.— Losses  due  to 
the  decay,  defect,  nature  or  infirmity  of  the  goods  themselves 
have  been  placed  with  those  caused  by  the  act  of  God.  The 
same  principle  clearly  applies,  and  where  the  carrier  has 
furnished  proper  accommodations  and  exercised  ordinary  care 
upon  the  journey,  and  loss  has  occurred  because  of  the  in- 
herent nature  of  the  goods,  no  liability  attaches. 

§  242.  Live  animals. — Since  the  common  carrier  has  be- 
come a  carrier  of  animate  things  it  has  been  recognized  that 

§239.     Miltimore   v.    Chicago   etc.  D.  455;    [—1    Orange   County  Bank 

Railway  Co.,  37  Wis.  190;  [— ]  Hart  v.  Brown,  9  Wend.    (N.  Y.)    85,  24 

V.  Chicago  etc.  Railroad  Co.,  69  Iowa  Am.  D.  129 ;   [— ]  Bennett  v.  Ameri- 

485,   29   N.   W.   R.   597;    Harvey   v.  can  Express  Co.,  83  Me.  236,  23  Am. 

Rose,    26    Ark.    3,    7    Am.    R.    595;  St.  R.  774. 

[— ]   Orange  Co.  Bank  v.  Brown,  9  §  241.      [— ]     Evans   v.   Fitebburg 

Wend.   (N.  Y.)   85,  24  Am.  D.  129;  Railway  Co.,  Ill  Mass.  142,  15  Am. 

McCarthy  v.   Louisville   &   Nashville  R.  19;  McGraw  v.  Baltimore  &  Ohio 

Railroad  Co.,  102  Ala.  193,  14  S.  R.  Railway  Co.,  18  W.  Va.  361,  41  Am. 

370,  48  Am.  St.  R.  29 ;  Erie  Railway  R.  696 ;  Rixford  v.  Smith,  52  N.  H. 

Co.  V.  Wilcox,   84   111.   239,   25   Am.  355,  13  Am.  R.  42;   [— ]   Moulton  v. 

E.  451.  St.  Paul  etc.  Ry.  Co.,  31   Minn.   85, 

§  240.     [—1     Hollister     v.     Now-  16  N.  W.  R.  497,  47  Am.  R.  781. 
len,  19  Wend.   (N,  Y.)   231,  32  Am.  §  242.      f— ]      Evans   v.   Fitebburg 

100 


Duties  of  common  carrier.         ^§243-244 

a  different  element  luis  been  iiiti<KUice(l.  "Living  auimalK  havr 
excitabilities  and  volitions  of  tlieir  own  -which  greatly  increas<- 
the  risks  and  diffienlties  of  management.  They  arc  carried  in 
a  mode  entirely  opposed  to  their  instincts  and  habits;  they 
may  be  made  nncontrollalde  by  fright,  or,  notwithstanding 
every  precaution,  may  destroy  themselves  in  attempting  t«i 
break  loose,  or  may  kill  each  other." 

Michigan  rule — The  Michigan  court  has  gone  so  far  as  to 
hold  that  a  railroad  is  not  a  common  carrier  of  live  stock,  and 
therefore  is  as  to  live  stock  an  ordinary  bailee  for  hire  and 
bound  to  use  ordinary  diligence.  Othei*  states  have  not  fol- 
lowed this  rule. 

§  243.     Liability  for  live  stock. — As  a  connnon  carrier 

of  live  stock  the  railroad's  liability  is  that  of  an  insurer  as  in 
other  cases,  with  the  exception  that  it  is  excused  if  the  loss 
be  due  to  the  vice  of  the  animal  itself.  But  even  then  the  rail- 
road must  have  used  ordinary  diligence  to  prevent  loss.  It 
is  also  required  to  supply  suitable  appliances  such  as  stock- 
ears  and  yards  for  loading,  feeding  and  watering  the  stock  at 
proper  intervals  on  the  journey. 

The  shipper  generally  accompanies  the  stock,  but  if  stock  is 
accepted  for  shipment  without  an  attendant  the  carrier  must 
give  the  stock  proper  care.  There  are  many  state  and  some 
federal  statutes  regulating  the  care  of  live  stock  shipped  long 
distances,  both  for  the  purpose  of  preventing  cruelty  to  ani- 
mals and  danger  to  public  health. 

^  244.  Burden  of  proof. — The  carrier  is  bound  to  carry  safi- 
ly,  and  if  he  fail  to  do  so  the  burden  is  on  him  to  furnish  a 

Railway  Co.,  Ul   .Mass.  142,  15  Am.  432,   5  Am.   St.   R.   22(5;    Norfolk  A: 

R.  19;  Clarke  v.  Rochester  etc.  Rail-  Western  Railroad  Co.  v.  Harmaii.  '.M 

road  Co.,  14  N.  Y.  570,  67  Am.  D.  Va.   601,   22   S.   E.   R.   490.   .5(1   Am. 

205.     Compare  [— ]  Michigan  South-  St.  R.  855;   [  — 1  Evans  v.  Fitchburf; 

em  etc.  Railway  Co.  v.  McDonough,  Railway  Co.,  Ill   Mass.  142.  15  Am. 

21    Mich.    165,   4   Am.   R..  466,    and  R.  19;  Lindsley  v.  Chicago.  .\l.  &  St. 

I—]    Kansas  Pacific  Railway  Co.   v.  1'.    Railway   Co.,    36    Minn.    5.3<t.    33 


Nichols,  9  Kan.  235,  12  Am.  R.  494; 


X.    W.    R.    7,    1    Am.    St.    R.    692; 


1—]    Ayres    v.    Chicago    &    N.    W.  [— ]    Moulton   v.   St.    Paul   etc    Ry. 

Railway  Co.,  71  Wis.  372,  37  N.  W.  Co.,  31   Minn.  85.  16  N.  W.  R.  497. 

R.  432,  5  Am.  St.  R.  226.  47  Am.  R.  7S1.     See  also  63  Am.  St. 

§  243.     Agnew  v.  Steamer  Contra  R.    54S,    note,    and    5    Am.    &    Kng. 

Costa,  27  Cal.  426,   87  Am.   D.   87;  Ency.  of  Law,  430. 

[-J  Ayres  v.  Chicago  &  N.  W.  Rail-  §  244.     |-|     Bennett  v.  American 

way  Co.,  71  Wis.  372,  37  N.  W.  R.  Exi^ress  Co.,  S3  Me.  236,  22  Atl.  R. 

101 


^§  245-2.16  OF  EXTRAOEDINARY  BAILMENTS. 

vali'l  excuse.  It  the  shipper  proves  delivery  of  the  goods  to 
the  carrier  aud  the  delivery  of  them  by  the  carrier  in  a  dam- 
aged condition,  or  an  utter  failure  of  the  carrier  to  deliver,  the 
law  raises  the  presumption  that  the  carrier  is  liable.  This 
can  be  repelled  only  by  proof  by  the  carrier  that  the  loss  was 
due  to  one  of  the  excepted  perils. 

Some  cases  hold  that  he  must  also  prove  that  he  was  free 
from  negligence,  but  by  the  weight  of  authority  if  the  shipper 
asserts  that  notwithstanding  the  loss  was  caused  by  the  act  of 
God  or  other  excepted  peril,  still  the  carrier  did  not  exercise 
ordinary  care  to  mitigate  or  prevent  the  loss,  he  and  not  the 
carrier  must  assume  the  burden  of  proving  such  negligence. 

(4.)     Liahility  for  Deviation  and  Delay. 

§  245.  Deviation. — The  carrier  not  only  undertakes  the 
transportation,  but  he  engages  to  carry  by  the  usual  route. 
Any  material  deviation  is  an  assertion  of  a  right  of  control 
in  himself,  and  makes  him  liable  for  conversion.  He  becomes 
an  insurer  of  the  goods  even  against  the  excepted  perils,  and  it 
affords  him  no  excuse  that  they  would  have  been  subject  to  the 
same  perils  on  the  usual  route. 

But  a  sudden  emergency  may  justify  a  deviation.  It  must 
appear  however  that  the  safety  of  the  goods  demanded  it,  and 
that  it  was  not  practicable  to  consult  the  owner. 

v$  246.  Delay. — The  -first  duty  of  the  carrier  is  to  carry 
safely.  His  second  is  to  deliver  within  a  reasonable  time.  As 
to  the  first  he  is  an  insurer,  as  to  the  second  his  responsibility 
is  that  of  an  ordinary  bailee  for  hire,  he  must  use  ordinary  dili- 

1.59,  23  Am.  St.  R.  774;  [— ]  Rail-  Am.  St.  R.  29;  Hutchinson  on  Car- 
road   V.    Reeves,    10    Wall.    (U.    S.)  riers,  766. 

176;    [— ]   Hinkle  v.  Southern  Rail-         §245.      [— ]      Davis   v.   Garrett,   6 

way  Co.,  126  N.  C.  932,  86  S.  E.  E.  Bing.  716,  19  E.  C.  L.  821;   Crosby 

348,  78  Am.  St.  R.  685;  Lindsley  v.  v.   Fitch,   12   Conn.   410,   81  Am.   D. 

Chicago,   M.   &  St.   P.   Railway   Co.,  745;  Powers  v.  Davenport,  7  Black. 

36  Minn.  539,  33  N.  W.  R.  7,  1  Am.  (Ind.)      497,      43      Am.      D.      100; 

St.  R.  692;  Hays  v.  Kennedy,  41  Pa.  [— ]  Bennett  v.  Byram,  38  Miss.  17, 

St.  378,  80  Am.  D.  627 ;  Transporta-  75  Am.  D.  90 ;  Louisville  &  Nashville 

tion   Co.   V.   Tiers,   4   Zab.    (N.   J.)  Railroad  Co.  v.  Odil,  96  Tenn.  61,  33 

697,    64    Am.    D.    394;    Adams    Ex-  S.  W.  R.  611,  54  Am.  St.  R.  820. 
press  Co.  v.  Stettaners,  61  111.  184,  §  246.     [— ]     Geismer      v.      Lake 

14  Am.  R.  57.     Compare  McCarthy  Shore  &  Michigan  Southern  Railway 

v.    Louisville   &    Nashville    Railroad  Co.,  102  N.  Y.  563,  7  N.  E.  R.  828, 

Co.,  102  Ala.  198,  14  S.  R.  870,  48  55    Am.    R.    887;     [— ]    Bennett    v. 

]02 


Duties  of  common  carrier.         ^§  247-248 

gcnce  to  effect  the  transportation  with  ail  couvcnieut  dispatch. 
The  only  excuses  for  failure  to  carry  safely  are  the  excepti-l 
perils;  for  delay  uot  caused  by  the  carrier's  nej^ligence,  any  in- 
evitable accident,  or  irresistible  force  such  as  fire,  mobs,  unex- 
pected press  of  business,  will  furnish  excuse. 

Mere  delay,  even  if  it  be  unreasonable,  does  not  amount  to  a 
conversion  of  the  goods;  and  the  owner's  only  remedy  in  such 
a  case  is  to  accept  the  goods  and  look  to  the  carrier  for  tin* 
damage  suffered.  If  danger  threaten  the  goods  delay  may  Ix-- 
come  a  duty,  ])ut  in  any  case  the  carrier  must  exercise  due 
diligence  in  caring  for  the  goods  delayed,  and  when  the  reason 
for  the  delay  is  removed,  carry  them  forward  promptly. 

§  247.     Reasonable  time  is  to  be  determined  by  all  th.- 

conditions,  such  as  distance,  the  routi'.  the  season,  the  nature 
of  the  goods,  etc.  Each  case  must  be  determined  on  its  own 
facts. 

§  248.    Delay  not  sole  cause  of  loss.— The  authorities 

are  in  conflict  as  to  the  liability  of  the  carrier  for  loss  by  an  act 
of  God  which  would  not  have  overtaken  the  goods  but  for  un- 
necessary delay  in  transportation.  The  greater  number  of 
cases  hold  the  carrier  excused  on  the  ground  that  his  negligent 
delay  w^as  not  the  proximate  cause  of  the  loss.  But  many  ca.ses 
refuse  to  separate  the  negligence  of  the  carrier  from  the  act  of 
God.  To  avail  himself  of  exemption  because  of  the  act  of  God 
or  other  excepted  peril  the  carrier  must,  according  to  these 
cases,  show  that  he  was  free  from  fault. 

Byram,  38  Miss,  17,  75  Am.  T).  90;  tral   Railroa-l  <,(...   i;{  Gray    (.Matw^.) 

Parsons    v.    Hardy,    14    Wend.    (N.  481,  74  Am.   D.  (i4."j;    [  — |   Railn.a.l 

Y.)   215,  28  Am.  D.  521;   Crosby  v.  v.    Reeves,    10    Wall.    (f.    S.)    170; 

Fiteh,  12  Conn.  410,  31  Am.  D.  745;  Michaels  v.  New  York  Central  Kail- 

[— ]    Galena    etc.    Railroad    Co.    v.  road  Co.,  30  N.  Y.  564.  sii  Am.  D. 

Rae,    18    111.   488,   68   Am.    D.    574;  415;  Wald  v.  Pittsburg  etc  Ruilroa.l 

Gulf    etc.    Railway   Co.    v.   Levi,    76  Co.,   162  111.  545,  44   N.   K.   R.  SSS. 

Tex.  337,  13  S.  W.  R.  191,  18  Am.  53  Am.  St.  R.  332;  McCraw  v.  Hal- 

St.  R.  45;    Pcet  v.  Chicago  &  N.  W.  timore  &  Ohio  Railroa.l  Co..   IS   W. 

Ry.  Co.,  20  Wis.  594,  91  Am.  D.  446.  Va.   361,  41    Am.    R.   69(i.     Soe  also 

§247.     [ — 1     Bennett    v.    Byra;n,  11  Am.  St.  R.   363,   note;     Davis  v. 

38  Miss.  17,  75  Am.  D.  90;   McGraw  Central    Vermont    Railroail    Co..    60 

V.   Baltimore   &    Ohio   Railroad    Co.,  Vt.  290,  29  Atl.  R.  313.  44  Am.  St. 

18  W.  Va.  361,  41  Am.  R.  696;  Pcet  R.  852;   Reid   v.   Evansvillc  &  Torro 

V.  Chicago  &  N.  W.  Ry.  Co..  20  Wis.  Haute  R.  R.  Co.,  10  Ind.  Api>.  3S5. 

594,  91  Am.  D.  446.  35  N.  E.  R.  703,  53  Am.  St.  R.  391. 

§  248.    Denny  v.  New  York  Ccn- 

m 


OF  COMMON  CARRIERS  OF  GOODS. 

CHAPTER  XII. 

B.    LIABILITY  UNDER  SPECIAL  CONTRACT. 


Bill  of  lading. 

Parol  evidence. 

Delivery  of  bill  of  lad- 
ing. 

Parol  contracts. 

Tickets,  baggage  checks,  etc. 

(b)     Extent  of  limitation. 

Limitations  reasonable  and 
just. 

(i)  Limitations  as  to  the 
nature  of  carrier's  liabil- 
ity. 

General    rule. 

Special    rules. 

(ii)  Limitations  as  to 
amount  of  liability. 

Limitations  as  to  amount. 

Common    law    duty    remains. 

Consideration. 

Parties  to  the  contract. 

Agents    of    the    carrier. 

Burden    of    proof. 


§  249.  Contracts  enlarging  liability. — By  special  contract 
the  carrier  may  make  himself  liable  to  any  extent,  or  in  any 
manner.  He  may  insure  against  every  risk,  even  acts  of  God 
or  the  public  enemy,  against  delay  and  the  inherent  defects  of 
the  goods.  He  may  undertake  to  ship  at  a  certain  time,  by  a 
specified  train,  over  a  designated  route,  or  to  deliver  at  all 
hazards  by  a  definite  hour.  To  such  contracts  fairly  entered 
into  impossibility  of  performance  is  no  defence.  Having  prom- 
ised the  carrier  must  perform  at  his  peril. 

§  250.     Contracts  limiting  liability. — It  is  equally  well  set- 

104 


1249. 

Contracts     enlarging     liabil- 

§262. 

ity. 

263. 

250. 

Contracts    limiting    liability. 

264. 

251. 

Historical. 

252. 

Contract     must    be     ex- 

265. 

press. 

266. 

253. 

Notices. 

(1)     Limitation  of  liability 

267. 

by  public  notice. 

254. 

(a)     Public    notice. 

255. 

Notice    to    reveal    value 

of  goods. 

2.56. 

Notice  of  rules  and  reg- 

ulations. 

268. 

257. 

(b)     Notice   limiting    liabil- 
ity for  loss. 

269. 

258. 

English  rule. 

259. 

American  rule.  • 

270. 

(2)     Liability  under  special 

271. 

contract. 

260. 

The  earlier  cases. 

272. 

261. 

United  States  rule. 

273. 

(a)      Form    of   special    con- 

274. 

tracts. 

275. 

LIABILITY  UNDER  SPECIAL  CONTRACT.  §  051 

tied  that  the  responsibilitj^  of  a  common  carrii-r  may  be  limited 
by  an  express  contract  assented  to  by  the  shipper  at  the  time 
the  goods  were  accepted  by  the  carrier,  in  so  far  as  such  re- 
strictions are  reasonable  and  not  contrary  to  public  policy. 
Such  in  substance  is  the  holding  of  the  United  States  Supreme 
Court,  which  has  been  followed  by  every  state  court,  thougli 
the  conditions  of  liability  at  comnujii  law  have,  in  some  statcR, 
been  restored  by  provisions  in  the  constitution  or  by  statute. 

§  251.     Historical. — The   courts,   with    great   unanimity 

and  much  reiteration  have  insisted  upon  the  wisdom  of  the 
rule  imposing  upon  the  carriei*  extraordinai-y  liability,  and 
have  pointed  out  the  disastrous  results  of  any  relaxation  of  the 
rule,  but  with  some  exceptions  they  have  failed  to  recognize 
that  they  were  in  effect  largely  abandoning  the  rule,  even  whiH* 
they  were  insisting  upon  its  great  benciicence,  bj'  allowing  the 
carrier  to  escape  its  rigor  by  special  contract  with  the  shipper. 
As  Mr.  Schouler  has  pointed  out,  "The  reports  bear  amplo 
record  of  the  unflagging  perseverance  with  which  the  common 
carrier  seeks  to  make  decreased  responsibility  to  the  public 
the  price  of  affording  to  the  public  increased  facilities  of  trans- 
portation; of  his  quick-wittedness  in  coaxing,  entrapping,  even 
coercing  his  customers  into  accomplishing  this  furtherance  of 
his  own  ends." 

The  carrier,  at  the  cost  of  some  annoyance  and  a  vast  amount 
of  litigation,  has  through  his  use  of  the  special  contract  wrested 
from  the  public,  by  consent  of  the  courts,  almost  the  same  ex- 
emptions so  strenuously  denied  him  without  a  contract.  So 
hopeless  has  been  the  disadvantage  of  the  shipper  in  the  un- 
equal contest  that  it  was  a  foregone  conclusion  that  he  would 

§250.     [— ]     New    Jersey    Steam  '),-.    Am.    D.    ■2-22;    [—]    Railroad    v. 

Navigation  Co.  v.  Merchants'  Bank,  Loekwood,    17    Wall.    (U.    S.)    357; 

6  How.    (U.  S.)   344;   Southern   Ex-  Adams  E.\press  Co.  v.  Stettaners,  61 

press  Co.  v.  Caldwell,  88  U.  S.  264;  111.    184,    14   Am.    R.   57;    Gulf   etc. 

[— ]  Railroad  v.  Loekwood,  17  Wall.  Railroad    Co.    v.    Trawiok,    68    Tex. 

(U.  S.)   357.  314,  4  S.  W.  R.  567.  2   Am.  St.  R. 

§251.     Schouler       on       Bailments  494;     Missouri    Pacific    Railway  Co, 

and   Carriers,   Sec.   460,   88   Am.   St.  v.  Vandeventer.  26  Neb.  222,  41   N. 

R.   74,   note;    Gould   v.   Hill,   2   Hill  W.    R.    998;    McDaniel    v.    Chicago 

(N.  Y.)  623;   [— ]  Fish  v.  Chapman,  etc.  Railway  Co.,  24  Iowa  412;  Ohio 

2  Ga.  349,  46  Am.  D.  393;  [— ]  Hoi-  etc.   Railway   ("o.   v.   Tabor.   98   Ky. 

lister  V.  Nowlen,  19  Wend.   (N.  Y.)  503,  32  S.  W.  R. '168;  St.  I^ouis  etc. 

234,  32  Am.  D.  455;  Moses  V.  Boston  Railway    Co.    v.    Sherlock.    "''    K^.n. 

&  Maine  Railroad  Co.,  24  N.  H.  71,  23,  51  Pac.  R.  899. 

105 


^^  252-254  OF  COMMON  CAEEIERS. 

be  obliged  to  agree  to  any  stipulations  the  court  might  allow 
the  carriers  to  impose;  and  "goods  are  in  fact  now  but  rarely 
accepted  by  them  without  an  agreement  or  contract  for  such 
limitation." 

One  early  case  denying  this  right  to  the  carrier  stands  alone, 
although  sympathy  has  been  expressed  with  its  rule  in  other 
cases,  and  now  in  ;ilmost  every  state  the  validity  of  contracts 
exempting  the  carrier  from  much  of  his  common  law  liability 
is  firmly  established,  though  in  a  few  states  provisions  in  the 
constitutions  or  statutes  forbid  all  such  limitations,  or  in  cer- 
tain respects  restrict  them. 

j;  252.    Contract  must   be   express. — But   the   contract 

must  be  express.  A  contract  enlarging  or  restricting  the  car- 
rier's liability  is  in  derogation  of  the  common  law,  and  so  is 
strictly  construed  against  the  party  in  whose  favor  the  changes 
are  made.  No  exemptions  are  allowed  the  carrier  except  by 
clear  and  explicit  stipulations  in  the  contract.  If  terms  favor- 
ing the  carrier  are  susceptible  of  two  meanings  that  will  be 
adopted  which  is  the  more  favorable  to  the  shipper.  Exemp- 
tion of  liability  for  one  cause  will  not  by  implication  be  ex- 
tended to  include  others. 

§  253.     Notices. — Two  means  have  been  resorted  to  by 

common  carriers  to  evade  and  lessen  liability. 

(1)  By  public  notice. 

(2)  By  special  contract. 

Notices  have  been  used  for  two  purposes: 

(a)  To  call  attention  to  the  rules  and  regulations  of  the 
carrier. 

(b)  To  limit  his  liability  for  loss. 

(1)     Limitation  of  Liability  by  Public  Notice. 

§  254.  (a)  Public  notices  requiring  the  shipper  to  reveal 
to  the  carrier  what  the  latter  has  a  right  to  demand,  or  pub- 

§252.     [— ]     Hinkle   v.    Southern  28    Am.    D.    653;     [— ]    Bennett    v. 

Eailway  Co.,  126  N.  C.  932,  36  S.  E.  American  Express  Co.,   83  Me.   236, 

R.  348,  78  Am.  St.  R.  685;  [— ]  New  22  Atl.  R.  159,  23  Am.  St.  R.  774; 

Jersey     Steam     Navigation     Co.     v.  Southern  Express  Co.  v.  Caldwell,  88 

Merchants'  Bank,   6   How.    (U.   S.)  U.  S.  264. 

344;     [ — ]     Hart     v.     Pennsylvania  §254.     [— ]     Hollister  v.  Nowlen, 

Railroad  Co.,  112  U.  S.  331;   Beck-  19  Wend.    (N.  Y.)    234,   32  Am.  D. 

man  v.  Shouse,  5  Rawle  (Pa.)  179,  4n5;    [— ]  New  Jersey  Steam  Navi- 

106 


LIABILITY  UNDER  SPECIAL  COXTBACT      ^^  o^^  o:;? 

lishing  the  reasonable  rules  and  regulations  of  the  company 

as  to  its  manner  of  doing  busin.^ss,  if  brought  lioin.-  to  the 
knoAvledge  of  the  shipi)er.  are  binding. 

§  255.     Notice  to  reveal  value  of  goods.— It  has  been 

noted  that  the  shipper  is  not  bound  to  i<vc;il  tin-  value  of  the 
goods.  The  carrier  however  may  by  public  notice  brt>ught  to 
the  knowledge  of  the  shipper  protect  itself  from  liability  be- 
yond a  fixed  aiiiount,  unless  the  shipper  reveals  the  real  value 
so  that  the  carrier  may  make  reasonable  charge  for  the  addi- 
tional I'isk.  and  take  the  necessary  precauti<»ns  lo  insure  safety. 

i?  256.  Notice  of  rules  and  regulations.— Again  reason- 
able rules  as  to  the  manner  of  delivery  and  .-ntry  of  freight, 
rates  of  freight,  th-.^  disclosure  of  the  nature  of  goods,  perish- 
able or  dangerous,  the  time  and  manner  of  presenting  claims 
for  losses  and  the  like  may  be  published  by  a  general  notice. 
"These  are  but  the  reasonable  regulations  which  every  man 
should  be  allowed  to  establish  for  his  business  to  insure  regu- 
larity and  promptness,  and  to  properly  inform  him  of  the  re- 
sponsibility he  assumes." 

§  257.  (b)  Notice  limiting  liability  for  loss. — A  distinc- 
tion is  to  be  taken  between  notices  designed  to  .secure  expedi- 
tious service  and  fair  dealing  and  those  seeking  to  discharge 
the  carrier  from  duties  imposed  upon  him  by  law.  If  the  car- 
rier seeks  by  public  notice  to  escape  duties  and  liabilities  an- 
nexed to  his  employment  by  law,  it  is  not  enough  that  such 
notice  be  brought  to  the  knowledge  of  the  owner  ()f  the  prop- 

gation  Co.  v.  Merchants'  Bank,  6  §256.  1  —  1  McMillan  v.  Rail- 
How.  (U.  S.)  344;  Southern  Ex-  road  Co.,  16  Mich.  79,  93  Am.  R 
press  Co.  v.  Newby,  36  Ga.  635,  91  208;  Western  Transportation  Co.  v. 
Am.  D.  783.  Newhall,  24  III.  466.  76  Am.  D.  760; 
§  255.  [ — ]  Hollister  v.  Now-  Southern  Express  Co.  v.  Xewby,  36 
len,  19  Wend.  (N.  Y.)  234,  32  Am.  Ga.  635,  91  Am.  D.  783. 
D.  455;  [— ]  Orange  County  Bank  §257.  Erie  Railway  Co.  v.  Wil- 
V.  Brown,  9  Wend.  (N.  Y.)  85,  24  cox,  84  111.  239.  25  Am.  R.  4.")1; 
Am.  D.  129;  [ — ]  Fish  v.  Chap-  [ — ]  New  .lersey  Stoam  Xavijjation 
man,  2  Ga.  349,  46  Am.  D.  393;  Co.  v.  Merchants'  Bank.  6  How.  (U. 
[ — ]  Hart  V.  Pennsylvania  Railroad  S.)  344;  [ — ]  Christonson  v.  Amcri- 
Co.,  112  U.  S.  331;  Willock  v.  Penn-  can  Express  Co.,  15  Minn.  270.  2  Am. 
sylvania  Railroad  Co.,  166  Pa.  St.  K.  122;  ( —  j  Bennett  v.  Amoricnn 
184,  30  Atl.  R.  948,  45  Am.  St.  R.  Express  Co.,  S3  Me.  2.36.  22  Atl.  R. 
674.  159,  23  Am.  St.  R.  774. 

107 


*><  258-260  O^  COMMON  CAEEIEES. 

in-ty.    To  be  ett'eetual  the  restriction  must  be  actually  assented 

to  by  the  owner. 

§  258.     English  rule.— The   attempt   of  the   carrier  by 

posting  public  notice  to  limit  his  liability  for  loss  was  favored 
by  the  English  courts  until  it  resulted  in  a  situation  so  intoler- 
able as  to  bring  about  the  passage  of  the  Railway  and  Canal 
Traffic  Act  of  1854,  which  required  that  conditions  must  be 
embodied  in  a  special  contract  signed  by  the  shipper,  and  that 
they  must  be  such  as  shall  be  adjudged  by  the  court  or  judge, 
before  whom  any  question  relating  thereto  shall  be  tried,  to  be 
just  and  reasonable. 

js  259.    American  rule.— The  American  courts  squarely 

refused  to  follow  the  confessedly  unsatisfactory  rule  reached 
in  England,  but  held  that  even  though  a  notice  were  brought 
to  the  shipper's  knowledge  and  he  delivered  goods  thereafter 
to  the  carrier,  his  consent  to  be  bound  by  the  notice  was  not 
to  be  presumed.  For  ' '  a  notice  can,  at  the  most,  only  amount 
to  a  proposal  for  a  special  contract  which  requires  the  assent 
of  the  other  party.  The  mere  delivery  of  goods  after  receiv- 
ing a  notice  cannot  warrant  a  stronger  presumption  that  the 
owner  intended  to  assent  to  a  restricted  liability  on  the  part 
of  the  carrier,  than  it  does  that  he  intended  to  insist  on  the 
liabilities  imposed  by  la.w,"  as  he  had  a  right  to  do. 

(2)     Liahility  Under  Special  Contract. 

§  260.  The  earlier  cases. — The  case  of  Hollister  v.  Nowlen, 
supra,  was  followed  in  a  few  years  by  Gould  v.  Hill,  in  which 
a  special  contract  was  put  in  the  same  position  as  notices,  the 
court  regarding  the  individual  shipper  as  so  hopelessly  out- 
matched in  contracting  with  the  great  carrying  corporations 

§258.     [— ]     Hollister     v.     Now-  v.  Lockwood,  17  Wall.   (U.  S.)   357; 

len,  19  Wend.   (N.  Y.)   234,  32  Am.  Moses   v.   Boston  &   Maine  Railroad 

D    455;   [—1   Railroad  v.  Lockwood,  Co.,   24  N.   H.   71,   55  Am.   D.   222; 

17  Wall.  (U.  S.)  357;  Moses  v.  Bos-  Southern  Express  Co.  v.  Newby,   36 

ton  &  Maine  Railroad  Co.,  24  N.  H.  Ga.  635,  91  Am.  D.  783. 
71,   55   Am.   D.   222 ;    Southern   Ex-         §  260.     Gould  v.  Hill,   2  Hill    (N. 

press  Co.  v.  Caldwell,  88  U.  S.  264.  Y.)    623;    [— ]    Fish  v.   Chapman,   2 

§  259.     [— ]     Hollister     v.     Now-  Ga.  349,  46  Am.  D.  393 ;    [— ]   Rail- 

len,  19  Wend.   (N.  Y.)   234,  32  Am.  road  v.  Lockwood,  17  Wall.   (U.  S.) 

D.    455;     [ — ]    New    Jersey    Steam  357;     Schouler     on     Bailments     and 

Navigation  Co.  v.  Merchants'  Bank,  Carriers,  460-462. 
6  How.   (U.  S.)   344;    [—1  Railroad 

108 


LIABILITY  UNDER  SPECIAL  CONTRACT.    ||  261-262 

that  it  made  little  difference  whether  the  carrier  sought  the 
exemption  by  public  notice  or  by  special  contract.  It  seemed 
a  travesty  to  speak  of  mutual  assent  between  two  i)arties  on 
such  unequal  footinji. 

§  261.  United  States  rule. — The  Supreme  Court  of  the 
United  States  in  the  ease  of  the  .Xew  Jersey  Steam  Navigation 
Co.  V.  ^Merchants'  Bank,  supra,  disapproved  the  rule  of  (Jiiuld 
V.  Hill,  and  in  this  has  been  followed  by  all  the  .state  courts, 
including  Xew  York :  so  that  now,  apart  from  statute,  the  car- 
rier is  everywhere  permitted  by  contract  assentetl  to  by  the 
shipper  to  secure  release  from  his  strict  liability.  It  is  now  in 
order  to  inquire 

(a)  How  these  restrictions  may  be  nuirle. 

(b)  How  far  they  may  extend. 

(a)     Form  of  Special  Contracts. 

§  262.  Bill  of  lading. — When  the  special  contract  is  in  writ- 
ing its  terms  are  usually  incorporated  in  the  bill  of  lading, 
which,  as  already  noticed  in  §  219,  is  both  a  receipt  and  a 
contract.  As  a  contract  it  requires  mutual  assent  to  its  terras. 
The  carrier  cannot  by  his  ex  parte  action  restrict  his  liability, 
but  express  assent  by  the  shipper  is  not  essential.  The  courts, 
with  substantial  unanimity,  have  held  that  when  a  shipper  ac- 
cepts a  bill  of  lading  at  the  time  when  he  delivers  his  goods 
to  the  carrier  he  is  conclusively  presumed,  in  the  absence  of 
fraud  and  imposition,  to  have  assented  to  all  the  terms  and 
conditions,  written  or  printed,  therein. 

It  matters  not  that  he  may  not  have  understood  th.-m.  or 
even  read  them,  nor  that  he  took  the  bill  but  did  n<«t  si-rn  it. 
He  is  conclusively  presumed  to  know  the  general  custom  to 
print  such  regulations  in  bills  of  lading,  and  if  he  choi.ses  to 
accept  them  without  reading  he  is  estopped  from  denying  his 
assent,  so  far  as  the  regulations  are  reasonable  and  just. 

§  261.     [—1      New    Jersey    Steam  Railroad  Co.,  66  Vt.  290,  Hi  Atl.  R. 

Navigation  Co.  v.  Merchants'  Bank,  313,   44   Am.   St.    R.   852;    Grace   v. 

6  How.   (U.  S.)   344;   Gould  v.  Hill.  Adams.   100   Mass.   no.').   97   Am.   0. 

2  Hill   (N.  Y.)  623.  11":   Belger  v.   Dinsmore.  HI    N.   Y. 

§o(5o*[_|  MfMiUan  v.  Rail-  166,  10  Am.  R.  575;  Ballon  v.  Earle. 
road'  Co.,  16  Mich.  79,  93  Am.  D.  17  R.  I.  441.  22  Atl.  R.  1113.  33 
208;  [—]  Christenson  v.  American  Am.  St.  R.  881.  Contra.  Adams  Ex- 
Express  Co.,  15  Minn.  270,  2  Am.  press  Co.  v.^  St et tuners.  61  HI.  IM, 
R     122;    Davis   v.   Central  Vermont  1-'.  Am.  R.  57. 

109 


'^  'i  '^63-266  OF  COMMON  CARRIEKS. 

§263.     Parol   evidence.— Bills  of  lading,   as   contracts, 

like  other  written  contracts,  cannot  be  varied  or  contradicted 
by  parol  evidence.  All  previous  oral  agreements  are  pre- 
sumed to  be  merged  in  a  bill  of  lading,  which  is  regarded  as 
the  final  repository  of  the  terms  and  conditions  of  the  contract 
of  carriage. 

^  264.     Delivery  of  bill  of  lading. — To  effect  a  contract 

by  means  of  a  bill  of  lading  it  is  necessary  to  deliver  the  bill 
of  lading  when  the  goods  are  accepted  by  the  carrier.  The 
rule  that  prior  negotiations  are  merged  in  the  written  agree- 
ment has  no  application  to  a  case  where  the  written  agree- 
ment is  imposed  upon  one  party  after  the  other  party  has 
begun  performance.  If  the  carrier  accepts  the  goods  uncondi- 
tionally, he  cannot  afterwards,  without  the  consent  of  the 
owner,  limit  his  liability  by  imposing  a  bill  of  lading  containing 
restrictions.  Of  course,  the  shipper  may  expressly,  or  im- 
pliedly, or  by  course  of  dealing,  consent  to  a  future  delivery 
of  the  contract. 

>5  265.  Parol  contracts. — No  particular  form  of  contract  is 
necessary  between  the  carrier  and  shipper.  A  parol  statement 
by  the  carrier  assented  to  by  the  shipper  Mall  be  as  effectual  as 
a  written  contract,  though  evidence  to  prove  it  is  more  uncer- 
tain. The  contract  may  be  partly  in  writing  and  partly  oral, 
but  merely  shipping  goods  after  an  oral  statement  of  the  con- 
ditions of  carriage  is -not  conclusive  of  assent  to  those  condi- 
tions. The  carrier  assumes  the  burden  of  proving  clearly  the 
mutual  agreement. 

§  266.  Tickets,  baggage,  checks,  etc.,  ca7inot  be  regarded  like 
bills  of  lading  and  express  receipts.  These  latter  are  taken 
leisurely,  are  used  in  trade  by  way  of  pledge  as  security  for 
advances,  or  they  are  assigned  to  transfer  title  to  the  goods. 

§263.     See  Sec.   221,  ante;  Davis  Dinsmore,  111  Mass.  45;  Hutchinson 

V.  Central  Vermont  Eailroad  Co.,  66  on  Carriers,  246-247. 
Vt.  290,  29  Atl.  E.  313,  44  Am.  St.  §  265.     Gott     v.     Dinsmore,     111 

E   852;  [ — ]  Hansen  v.  Flint  &  Pere  Mass.  45;   American  Transportation 

Marquette   Eailroad     Co.,     73     Wis.  Co.    v.    Moore,    5   Mich.    368;    Black 

346,  9  Am.  St.  E.  791.  v    Transportation  Co.,  55  Wis.   319, 

§  264.     [— ]     Bostwick     v.     Eail-  13  N.  W.  E.  244,  42  Am.  E.  713. 
road  Co.,  45  N.  Y.  712;  Merchants'  §266.     Blossom    v.    Dodd,    43    N. 

Despatch      Transportation      Co.      v.  Y.    264,   3   Am.   E.   701;    [ — ]    Ean- 

Furthmann,  149  111.  66,  36  N.  E.  E.  chau    v.    Eutland    Eailroad    Co.,    71 

624,    41    Am.    St.   E.   265;     Gott   v.  Vt.  142,  43  Atl.  E.  11,  76  Am.  St.  R. 

110 


LIABILITY  UNDER  SPECIAL  CONTRACT.     §§  267-268 

They  are  the  representatives  of  the  goods,  and  are  of  such  im- 
portance that  a  hokler  cannot  be  heard  to  claim  ignorance  of 
their  contents.  Not  so  with  tickets  and  checks;  they  are 
usually  taken  in  haste,  represent  no  goods,  and  in  general  con- 
tain no  terms.  They  are  understood  to  be  mere  receipts  show- 
ing that  the  holder  has  paid  for  a  service.  They  are  not  in 
general  contracts,  but  mere  evidence  of  a  contract.  If  they 
are  to  serve  as  contracts  also  the  carrier  must  indicate  that 
fact,  and  in  some  way  secure  the  assent  of  the  owner. 

(b)     Extent  of  the  Liinitittioii. 

^  267.  Limitations  reasonable  and  just. — Tiiough  an  almost 
universal  liberty  is  allowed  the  cai-i-ier  to  contract  for  exemp- 
tions from  his  common  law  liability,  the  courts,  with  few  ex- 
ceptions, insist  that  the  stipulations  of  the  contract  must  be 
reasonable  and  .just.  Even  though  a  shipper  may  be  ready  to 
assent  to  complete  release  of  the  carrier  from  liability,  the 
courts  will  not  recognize  such  an  agreement  because  of  tlie 
interest  of  the  x)ublie  in  preventing  the  carrier  from  taking 
advantage  of  the  individual  shipper. 

It  becomes  important  then  at  this  point  to  mai-k  out  what  is 
reasonable  and  not  contrary  to  public  jiolicy.  Foi*  this  jiurpose 
restrictions  may  be  regarded  as  intended  to  limit 

(i)     The  nature  of  the  liability. 

(ii)     The  amount  of  the  liability. 

(i)     Limitations  as  to  the  Xaturc  of  the  Carrier's  Liability. 

§  268.  General  rule. — It  is  the  rule  in  most  jurisdictions 
that  common  carriers  may  by  special  contract  assented  to  by 

761;    Grace    v.    Adams,    100    .Mass.  10   .\.   \V.   K.   W7.   47   Am.   R.   7sl: 

505,   97   Am.    I).    117;    Kansas   City  [ — J    Christensoii    v.    American    Ex- 

etc.   Railroad   Co.   v.   Rodebaugh,   3S  press  Co.,   15   Minn.   '270,  2  Am.   R. 

Kan.  45,  15  Pac.  R.  899,  5  Am.  St.  li:2;  Davis  v.  Central  Vermont  Rail- 

R.     715;     Rawson    v.     Pennsylvania  road  Co.,  66  Vt.  290,  29  Atl.  R.  .113, 

Railroad  Co.,  48  N.  Y.  212,   8  Am.  44  Am.  St.  R.  852;  Ballou  v.  Knr\c. 

R.  .543.  17    K.    I.   441,   22   Atl.   R.    l\U,   33 

§268.      [—1      New    Jersey    Steam  Am.  St.  R.  881;   Reid  v.   Evan.sville 

Navigation  Co.  v.  Merchants'  Rank,  &    Terre    Haute    Railroad    Co.,    10 

6  How.   (U.  S.)   344;    |— 1   Railroad  Tnd.  App.  385,  35  N.   K.  «.  703,  53 

V.  Lockwood,  17  Wall.   (U.  S.)   357;  Am.  St.  R.  .391.     See  also  the  notes 

Express    Co.    v.    Caldwell,    21    Wall,  to  32  Am.   D.  49S,  and  88  Am.  St. 

(U.   S.)    264;    [— ]    Moulton   v.   St.  R.  95. 
Paul  etc.  Railway  Co.,  31  Minn.  85, 

111 


^  ^  269-270  O^  COMMON  CAEEIERS. 

the  shipper  be  relieved  from  liability  for  loss  to  the  goods  from 
any  eause  not  due  to  the  negligence  of  the  carrier,  or  to  his 
agents  or  servants.  Against  negligence  the  carrier  is  not  per- 
mitted to  contract. 

§  269.  Special  rules.— In  New  York  a  distinction  is  at- 
tempted between  the  acts  of  the  carrier,  and  the  acts  of  its 
agents  or  servants.  Against  its  own  negligence  the  carrier 
in'ay  not  contract,  but  against  that  of  its  agents  and  servants  it 
may.  This  distinction  is  not  generally  recognized,  and  in  most 
states  is  expressly  denied;  even  in  New  York  contracts  for 
such  exemptions  are  construed  with  great  strictness. 

In  Illinois,  and  perhaps  a  few  other  states,  it  has  been  held 
that  carriers  are  liable  for  "gross  negligence  or  wilful  mis- 
feasance against  which  good  morals  and  public  policy  forbid 
they  should  be  permitted  to  stipulate."  The  Illinois  courts, 
however,  seem  to  regard  any  negligence  by  the  carrier  as  gross. 

In  Kentucky.  Nebraska,  Iowa  and  Texas  the  constitution  or 
statutes  forbid  common  carriers  to  limit  or  restrict  their  lia- 
bility as  it  exists  at  common  law.  In  many  other  states  some 
bounds  are  set  by  statute  to  the  carrier's  power  to  contract 
against  liability. 

(/(■)     Limitations  as  to  the  Amount  of  the  Liahility. 

^  270,  Limitations  as  to  amount. — Despite  some  apparent 
conflict  in  the  cases  the  rule  is  now  well  settled  that  the  car- 
rier may  by  contract  limit  his  liability  in  case  of  loss  to  a  fixed 
amount. 

But  it  must  appear  that  such  amount  was,  for  the  purpose 

§  269.     Magnin  v.  Dinsmore,  56  N  Railway  Co.,  24  Iowa,  412;  Gulf  etc. 

Y.   168;    [ — ]    Mynard  v.   Syracuse,  Railroad    Co.    v.    Trawick,    68    Tex. 

etc.,  Railroad  Co.,  71  N.  Y.  180,  27  314,  4  S.  W.  R.  567,   2  Am.  St.  R. 

Am,   R.    28;     Illinois   Central   Rail-  494;    St.   Louis   etc.   Railway   Co.   v. 

road  Co.  v.  Smyser,  38  111.   354,  87  Sherlock,    59    Kan.    23,    51    Pac.    R. 

Am.  D.   301 ;     Chicago  etc.  Railway  899.      See   the   extended   note   in   88 

Co.  V.  Chapman,  133  111.  96,   24  N.  Am.  St.  R.  74. 

E.  R.  417,  23  Am.  St.  R.  587 ;    Black  §  270.       [— ]       Hart    v.    Pennsyl- 

V.   Goodrich   Transportation   Co.,   55  vania  Railroad  Co.,  112  U.  S.  331,  5 

Wis.  319,  13  N.  W.  R.  244,  42  Am.  Sup.   Ct.   151;     [— ]   Moulton  v.  St. 

R.   713;    Ohio,   etc.,   Railway   Co.   v.  Paul  etc.  Railway  Co.,  31  Minn.  85, 

Tabor,  98  Ky.  503,  32  S.  W.  R.  168 ;  16  N.  W.   R.  497,  47  Am.  R.   781 ; 

Missouri     Pacific     Railway     Co.     v.  Alair   v.    Northern   Pacific   Railroad 

Vandeventer,  26  Neb.  222,  41  N.  W.  Co.,    53    Minn.    160,    54    N.    W.    R. 

R,    998;    McDaniel   v,    Chicago    etc.  1072,  39  Am,  St,  R,  588;    Belger  v. 

112 


LIABILITY  UNDER  SPECIAL  CONTRACT.    §§  271-272 

of  transportation,  the  agreed  va!u<i  of  the  goods,  fairly  and 
honestly  fixed  as  the  basis  for  the  caiyi<M-'s  charges  and  respon- 
sibilities; and  further,  that  the  shipper  was  not  denied  the 
right,  by  paying  a  reasonable  compensation,  to  contract  for  a 
greater  value,  not  in  excess  of  the  real  value  of  the  goods.  By 
the  weight  of  authority  such  a  stipulation  fixes  the  aiuDunt  of 
the  recovery  even  when  the  loss  is  due  to  the  carrier's  negli- 
gence. The  risk  assumed  accords  with  the  charges  paid  and 
there  is  no  release  from  liability  for  negligence  up  to  the  value 
which  furnished  the  basis  of  the  carrier's  charges. 

i5  271.  Common  law  duty  remains. — In  any  ca.se  the  com- 
mon law  duty  remains  upon  the  carrier;  he  is  not  at  liberty 
to  decline  his  duties  and  responsibilities  as  fixed  by  law;  and 
the  shipper  has  a  right  to  insist  that  the  goods  be  carried  for  a 
reasonable  compensation,  insured  at  their  full  value  against 
every  loss  except  those  from  which  the  carrier  was  relieved  at 
common  law.  Any  contract  which  denies,  or  by  imposition, 
coercion  or  undue  advantage,  wrests  from  the  shipper  this 
right,  is  void.  And  when  a  special  contract  is  assented  to.  the 
carrier  is  still  a  common  carrier  in  all  respects  except  thos(> 
specifically  named  in  the  contract. 

;?  272.  Consideration. — Like  other  eoniraeis  tlie  contract 
limiting  the  liability  of  the  carrier  must  be  supported  by  con- 
sideration. Mere  acceptance  and  carriage  of  the  goods  is  not 
enough.  The  consideration  usually  consists  in  reduced  rates 
for  carriage.  When  therefore  the  maximum  rates  allowed  by 
law  are  charged  the  contract  limiting  liability  fails  for  laek  of 

Dinsmore,  51  N.  Y.  166,  10  Am.  R.  Ark.  Hi'.  -20  S.  W.  K.  S03.  38  Am. 

575;    Ballon  v.  Earle,  17  E.  I.  441,  St.  R.  -JSO;    [—1  Hinkle  v.  Southern 

22  Atl.  R.  1113,  33  Am.  St.  R.  881;  Railway  Co.,   126  N.  C.  932,   35  S. 

Xlllman  v.  Chicago,  etc..  Railway  Co.,  E.  R.  810,  78  Am.  St.  R.  685;  Wit- 

112   Wis.  150,   88   N.  W.  R.  41,   88  ting  v.   St.  Louis  etc.   Railway  Co.. 

Am.  St.  R.  949.  101   Mo.  631,   14  S.   W.   R.   743,   20 

§  271.      [— ]      Railroad    v.    Lock-  Am.  St.  R.  636. 
wood,  17  Wall.    (U.  S.)   357;  Moses         §272.      [— 1      McMillan   v.   Michi- 

V.  Boston  &  Maine  Railroad  Co.,  24  gan  Southern,  etc..  Railroad  Co.,  16 

X.  H.  71,  55  Am.  D.  222;    [-]  Mc-  Mich.  79,  93  Am.  D.  208;    Belger  v. 

Millan   v.    Michigan    Southern,    etc.,  Dinsmore,  51  N.  Y.   166.  10  Am.  R. 

Railroad  Co.,   16  Mich.   79,   93   Am.  575;     McFadden  v.  Mis.«ouri   Pacific 

D.   208;    Ballou  v.  Earle,  17  R.   I.  Railway  Co.,  92  Mo.  343,  4  S.  W.  R. 

441,  22  Atl.  R.  1113.  33  Am.  St.  R.  689,  1  Am.  St.  R.  721.  and  the  note 

S81 ;     Railway    Co.    v.    Cravens,    57  to  88  Am.  St.  R.  88. 
S                                                118 


^^  27:5-275  ^V  COMMON   CAKKIEKS. 

consideration.  In  the  absence  of  proof  to  the  eontrary  con- 
sideration is  i.resumed.  thf  rate  being  based  on  the  hinited 
liability  incurred. 

§  273.  Parties  to  the  contract.— An  agent  entrusted  by  the 
OAvner  with  -oods  for  shipment  has  implied  power  to  accept  a 
receipt  containing  reasonabk^  limitations  on  the  carrier's  lia- 
bility. The  consignor  has  usually  such  authority  for  a  con- 
signee, but  a  connecting  carrier  has  no  implied  authority  to 
ac'eept  conditions  other  than  those  in  its  own  contract  of  ship- 
ment, or  those  that  are  by  custom  and  usage  known  to  the 
shipper  to  be  the  conditions  under  which  the  connecting  carrier 
usually  carries.  But  the  agent  directed  to  forward  goods,  in 
the  absence  of  contrary  instructions,  is  bound  to  accept  the 
customary  receipt,  and  if  he  refuse  and  the  carrier  in  conse- 
quence decline  to  accept  the  goods,  the  agent  may  become  per- 
sonally liable  to  the  consignee  for  resulting  loss. 

§  274.  Agents  of  the  carrier.— Railroads  act  only  through 
agents.  No  question  of  the  authority  of  such  agent  can  arise 
where  the  company  seeks  to  take  advantage  of  the  contract. 
Acceptance  of  the  contract  is  affirmance  of  the  power  of  the 
agent  to  make  it.  But  when  an  agent  accepts  for  the  carrier 
increased  obligations,  the  question  of  his  authority  is  vital.  In 
general  the  public  have  a  right  to  assume  that  both  the  general 
agent,  and  the  local  or  station  agent,  have  authority  to  bind  the 
company  by  reasonable  contracts  as  to  matters  within  the  line 
of  their  employment.  The  usage  and  custom  of  the  carrier  are 
often  important  in  determining  whether  the  act  of  the  agent 
was  within  the  real  or  apparent  scope  of  his  authority. 

§  275.  Burden  of  proof. — The  burden  of  proving  that  the 
loss  resulted  from  a  cause  included  in  the  exemptions  named 

§  273.     Kawson  v.  Holland,  59  N.  Iowa,  491,  27  N.  W.  R.  473,  56  Am. 

Y.   611,   17  Am.  E.   394;     [— ]    Mc-  E.    861;      [— ]    Hansen    v.    Flint    & 

:\Iillan    V.    MicMgan   Southern,    etc.,  Pere    Marquette    Railroad    Co.,     73 

Railroad   Co.,   16  Mich.   79,   93  Am.  Wis.  346,  41  N.  W.  R.  529,   9  Am. 

D.  208;  88  Am.  St.  E.  87  and  note.  St.   R.   791.     Compare  Burroughs  v. 

§  274.     Deming   v.    Grand   Trunk  Railroad  Co.,  100  Mass.  26,  1  Am.  R. 

Railway  Co.,  48  N.  H.  455,  2  Am.  R.  78,  and  Grover  &  Baker  Sewing  Ma- 

267;      Voorhees    v.     Chicago,    Rock  chine   Co.   v.   Missouri   Pacific   Rail- 

Tsland    &    Pacific    Railway    Co.,    71  way  Co.,  70  Mo.  672,  35  Am.  E.  444. 

Iowa,  735,  30  N.  W.  E.  29,  60  Am.  §  275.     Witting  v.  St.  Louis,  etc., 

R.  823;    Wood  v.  Chicago,  Milwau-  Railway  Co.,  101  Mo.  631,  14  S.  W. 

kee    &    St.    Paul    Railway    Co.,    68  R.  743,  20  Am.  St.  R.  636 ;  [— 1  Hin- 

114 


LIABILITY  UNDER  SPECIAL  CONTBACT.  §  275 

in  the  contract  rests  on  the  carrier.  And  even  if  that  be  shown 
he  will  still  be  liable  if  the  loss  was  caused  by  the  negligence 
of  the  carrier  or  his  servants. 

By  the  weight  of  authority  the  carrier  makes  out  a  ijrima 
facie  case  by  bringing  the  loss  within  the  exeniptions  of  the 
contract,  and  the  burden  then  rests  on  the  owner  to  show  that 
the  carrier  was  negligent.  This  rule  is  vigorously  combatted 
in  many  cases  on  the  ground  that  the  carrier  alone  is  in  posi- 
tion to  show  how  the  goods  have  been  treated  during  trans- 
portation, and  the  burden  of  proving  facts  peculiarly  within 
the  knowledge  of  a  party  should  rest  upon  that  party. 

kle  V.  Southern  Eailway  Co.,  126  X.  Railroad  Co.,  10   Ind.  App.  385,  35 

C.  932,  35  S.  E.  E.  810,  78  Am.  St.  X.   E.  R.   703,   53   Am.   St.   R.   391; 

R.   685;    Terre   Haute   etc.   Railroad  Western  Transportation  Co.  v.  Xew- 

Co.   V.   Sherwood,   132   Ind.    129,    31  hall,    24   111.   466,    76   Am.    D.    760; 

N.  E.   R.   781,   32  Am.   St.   R.   239;  Southern  Express  Co.  v.  Xewby.  36 

Reid    V.    Evansville   &    Terre   Haute  Ga.  635.  91  Am.  TX  783. 


'/,/ 


^ 


V      115 


OF  COMMON  CARRIERS  OF  GOODS. 
CHAPTER  XIII. 

3.    TERMINATION  OF  THE  RELATION. 


i'7G.     Liability  of  common  carrier 

how  ended. 

(1)     Delivery    by    the    com- 
mon carrier. 
1:77.     Essentials  of  delivery. 

(a)  Time  of  delivery. 
1278.     Keasonable  time. 

(b)  At  the  proper  place. 
279.     General  rule. 

l2S0.     Delivery      by      carriers      by 
water. 

281.  Delivery  by  railroads. 

282.  Delivery     by     express     com- 

panies. 

283.     Shipment  C.  O.  D. 

(c)  In  a  proper  manner. 

284.  Delivery  safe  and  convenient. 

(d)  To  the  right  person. 

285.  Carrier  absolutely  liable. 

286.     Illustrations. 

287.  Bill  of  lading. 

288.  Delivery  to  consignee. 

289.     Interpleader. 

Connecting   carriers. 

290.  Delivery  to  a  connecting  car- 

rier. 

291.  Duty   to    carry    beyond    car- 

rier's route. 

292.  Partnership  arrangement. 

293.  Goods   directed   beyond   car- 

rier's terminus. 


294.     American  rule. 

295.     Special  contract. 

296.  Carriers   agents   of   the   con- 

signor. 

297.  What    amounts    to    delivery 

to  a  connecting  carrier. 

298.  Presumption    as    to    carrier 

liable. 

299.  Benefit  to  connecting  carrier 

of  contract  exemptions. 

300.  Delivery  to  a  warehouseman. 

301.     What     constitutes     such 

delivery. 

302.     The      Massachusetts 

rule. 

303.     The      New      Hamp- 
shire rule. 

304.     The    Michigan   rule. 

305.  Delivery      by      carriers      by 

water. 

306.     Manner  of  delivery. 

307.  Delivery  to  an  elevator. 

(3)      Acts   excusing   non-de- 
livery. 

308.  Excepted  perils. 

309.  Paramount  owner. 

310.  Stoppage  in  transitu. 

311.     Right  how  exercised. 

312.  Improper   exercise   of   right. 

313.  Inability    to    find    consignee. 


§  276.  Liability  as  common  carrier  how  ended. — The  duties 
of  the  common  carrier  as  such  may  be  terminated 

(1)  By  delivery. 

(2)  By  excuse  for  non-delivery. 

§  276.  Western  Transportation  Railroad  Co.  v.  Day,  20  111.  375,  71 
Co.  v.  Newhall,  24  111.  466,  76  Am.  Am.  D.  278;  [— ]  Fisk  v.  Newton,  1 
D.     760;      Michigan    Southern    etc.      Denio  (N.  Y.)  45,  43  Am.  D.  649. 

116 


TERMINATION  OF  THE    KKLATION.         §§277-279 

Delivery  is  the  final  duty  of  every  carrier,  as  a  carrier,  and 
his  extraordinary  liability  can  be  ended  only  by  proper  de- 
livery of  the  goods  or  by  a  valid  excuse  for  non-delivery. 

(1)     Delivery  by  the  Common  Carrier. 

§  277.  Essentials  of  deliverj-.-As  proper  deliverv  brings  to 
an  end  the  extraordinary  liability  of  the  common  carrier  it  bo- 
comes  important  to  define  legal  delivery.  The  carrier  fulfill* 
his  duty  only  by  a  delivery 

(a)  Al  a  reasonable  time. 

(b)  At  the  proper  place. 
(e)  In  a  proper  manner, 
(d)     To  the  right  person. 

(o)     Time  .if  Delivery. 

§278.  Reasonable  time.— As  already  brought  out  (.sections 
246,  247),  the  carriage  miTst  be  completed  within  a  reasonable 
time  after  the  goods  are  accepted  for  transportation.  It  may 
now  be  added  that  delivery  must  be  made  on  a  prop.'r  day  anil 
at  a  reasonable  time  of  the  day.  AVhat  is  reasonable  depends 
upon  circumstances  and  custom,  but  generally  speakinp  the 
consignee  is  not  bound  to  receive  goods  out  of'busine.s.s  hours, 
or  on  a  stormy  day  that  makes  the  i-emoval  (.f  the  goods  dan- 
gerous. 

{h)      At  the  Proper  riarr. 

§  279.  General  rule.— Formerly,  in  the  absence  of  estab- 
lished custom  to  the  contrary,  it  Avas  understood  to  l)e  the  duty 
of  all  common  carriers  to  deliver  the  goods  to  the  consignee 

§277.       Hutchinson    on    Carriers,  Andrew  v.  Whitloek,  .51'  N.  Y.  40.  11 

340;    Eagle  v.  White,  6  Whar.  (Pa.)  Am.  R.  657;    Richar.lson  v.  Oo.Manl. 

505,    37   Am.   D.   434;     Marshall    v.  23  How.  (U.  S.)  28. 
American  Express  Co.,  7  Wis.  1,  73  §  270.      |  — 1      American    Kxpr«w 

Am.  D.  381.  ("o.  v.  Hockett,  ;{0  Ind.  2")0.  *>'>  Am. 

§278.       Hill     V.     Humphreys,     .")  H.  691 ;    McMasters  v.  Pennsylvania 

Watts  &   S.    (Pa.)    123,   39   Am.    D.  Railroa-l  Co.,  69  Pa.  St.  374," S  Am. 

117;    Eagle  V.  White,  6  Whar.  (Pa.)  R.    264;     Turner   v.    Huff.   46    Ark. 

505,  37  Am.  D.  434;    Morgan  v.  Dib-  222,  55  Am.  R.  5S0;    [—1  Soheu  v. 

ble,   29   Tex.   108,   94  Am.   D.   264;  Beijetliot,   116   N.   Y.   510.  22  N.   K. 

Marshall  v.  American  Express  Co.,  7  R    1073,  15  Am.  St.  R.  426;   Ilaywi 

Wis.  1,  73  Am.  R  381;     [— ]  Scheu  v.   Wells-Fargo  &   Co..  23  «"al.    IS."); 

V.  Benedict,  116  N.  Y.  510,  22  N,  E.  83  Am.   D.   89;     Houston   ef.-.   Rail- 

R.   1073,   15  Am.   St.  R.  426;    Mc-  way  Co.  v.  Adams,  49  Tex.  748,  30 

117 


S8  280-281  O^  COMMON  CARRIEES. 

personaUy  at  his  residence  or  place  of  business,  or  according 
to  the  directions  of  the  consignor.  But  any  carrier  was  per- 
mitted to  show  an  established  usage  in  his  business  to  make 
delivery  in  a  different  manner.  Usage  as  to  the  manner  of 
delivery  by  the  various  classes  of  common  carriers  is  now  so 
well  established  that  doubt  as  to  what  is  the  proper  manner  of 
delivery  by  a  given  carrier  rarely  arises. 

Except  where  modified  by  usage  personal  delivery  is  still 
the  rule,  and  the  common  carrier  who  would  excuse  such  de- 
livery must  establish  a  custom  exempting  from  the  rule  the 
class  of  carriers  to  which  he  belongs.  Such  usage  may  be  relied 
on  because  every  person  is  supposed  to  contract  with  reference 
to  the  known  usages  of  a  trade.  Delivery  at  the  usual  place  is 
sufficient  unless  the  place  of  delivery  is  specified  in  the  contract. 

:j  280.  Delivery  by  carriers  by  water.— Carriers  by  water 
have  always  been  excused  from  personal  delivery.  A  ship 
trading  from  one  port  to  another  has  not  the  means  of  carrying 
the  goods  on  land ;  and  according  to  the  established  course  of 
trade  a  delivery  on  the  usual  wharf  and  notice  to  the  consignor 
of  the  arrival  of  the  goods  is  such  a  delivery  as  will  discharge 
the  carrier. 

§  281.  Delivery  by  railroads. — Like  carriers  by  water  rail- 
roads have  fixed  places  for  delivery.  Transportation  being 
along  a  line  of  rails  between  definite  stations  the  delivery  of 
goods  conveyed  by  railroads  is  necessarily  confined  to  certain 

Am.   E.   116;     Gibson  v.   Culver,   17  lock,  52  N.  Y.  40,   11  Am.  R.  657; 

Wend.  (N.  Y.)  305,  31  Am.  D.  297;  Ostrancler  v.  Brown,   15  Johns.    (N. 

I  — I    Fisk  V.  Newton,   1   Denio    (N.  Y.)    39,    8    Am.    D.    211;    Kohn    v. 

Y.)  45,  43  Am.  D.  649;    Sonia  Cot-  Packard,  3  La.  224,  23  Am.  D.  453; 

ton   Oil   Co.   V.   Steamer  Red  River,  Shenk    v.    Philadelphia    Steam    Pro- 

106  La.  42,  30  So.  R.  303,  87  Am.  St.  peller  Co.,  60  Pa.  St.  109,  100  Am. 

R.    293;      Hutchinson    on    Carriers,  D.  541;   Richardson  v.  Goddard,   23 

341-342.  How.  U.  S.  28. 

§  280.  Hyde  v.  Trent  &  Mersey  §  281.  [— ]  Moses  v.  Boston  & 
Navigation  '  Co.,  5  T.  R.  389;  Maine  Railroad  Co.,  32  N.  H.  523,  64 
[_]  Scheu  v.  Benedict,  116  N.  Y.  Am.  D.  381;  [— ]  Norway  Plains 
510  22  N.  E.  R.  1073,  15  Am.  St.  Co.  v.  Boston  &  Maine  Railroad  Co., 
R.  426;  Morgan  v.  Dibble,  29  Tex.  1  Gray  (Mass.)  263,  61  Am.  D.  423; 
108  94  Am.  D.  264;  [ — ]  Zinn  v.  Bansemer  v.  Toledo  &  Wabash  Rail- 
New  Jersey  Steamboat  Co.,  49  N.  way  Co.,  25  Ind.  434,  87  Am.  D. 
Y.  442,  10  Am.  R.  402;  [— ]  Fisk  367;  Thomas  v.  Boston  &  Provi- 
v.  Newton,  1  Denio  (N.  Y.)  45,  43  dence  Railroad  Corp.,  10  Mete. 
Am.    D.    649;    McAndrew    v.    Whit-  (Mass.)  472,  4a  Am.  D.  444. 

118 


TERMINATION  OF  THE    RELATION.         §§282-284 

points  on  the  line  of  the  railroad  track.  Railroad  coiupanios 
cannot,  without  maintaining  an  additional  wagon  service,  pass 
from  warehouse  to  warehouse  to  discharge  their  freight  on  the 
premises  of  the  various  consignees.  Accordingly  they  estal»- 
lish  platforms  and  warehouses  on  their  lines,  and  there  dis- 
charge their  freight  to  await  the  removal  by  the  consignee.  The 
precise  moment  at  which  delivery  by  a  railroad  to  itself  as 
warehouseman  terminates  its  liability  as  common  carrier  i» 
considered  in  sections  301-804.  post. 

^  282.  Delivery  by  express  companies  has  always  been  pw- 
sonal  except  at  stations  too  small  to  warrant  keeping  special 
wagons  for  such  delivery.  The  express  companies  owe  their 
origin  largelj^  to  the  necessity  of  personal  care  and  delivery  of 
small  packages  of  considerable  value,  and  to  this  duty  the  law 
holds  them  with  strictness  unless  a  clear  and  w('ll-estal)lish<'il 
custom  has  modified  their  duty  in  a  given  instance. 

§  283.  Shipment  C.  0.  D. — The  law  places  on  tlit-  carrier 

no  obligation  to  receive  goods  for  cai-riage  with  the  furtlit-r 
duty  "to  collect  on  delivery,"  but  frequently  by  contract  or 
custom,  carriers,  especially  express  companies,  undertake  such 
services,  and  in  such  case  they  must  perform  the  services  and 
deliver  the  goods  according  to  instructions.  The  carrier  is  the 
agent  of  the  shipper  to  collect  and  return  the  money,  and  he 
may  allow  the  consignee  to  inspect  the  goods  and  even  to  carry 
them  away  on  condition  that  if  they  are  not  satisfactory  they 
may  be  returned  and  the  money  recovered.  If  the  consignee 
rejects  the  goods  the  shipper  should  be  notified,  and  the  carrier 
holds  the  goods  as  warehouseman. 

(c)      III  a  Proprr  Manin  r. 

§  284.  Delivery  safe  and  convenient. — In  making  delivery 
the  carrier  is  bound  to  eonsnlt  the  convenience  of  the  consiirnee 

§  282.     Baldwin  v.  American  Exp.  Fargo  &  Co.,  23  Cal.  IS.').  S3  Am.  I>. 

Co.,    23    111.    120,    74    Am.    D.    190;  89;  Hutchinson  on  Carriers.  379-3S2. 

[ — ]    Bullard   v.    American    Express  §  283.      AniericaTi    Express   Co.    v. 

Co.,  107  Mich,  695,  65  N.  W.  R.  551,  Leseni,   39    III.   313;    (  — I    Ilasso   v. 

61    Am.    St.    R.    358,    and    extended  American  Express  Co.  94  Mich.  133. 

note;    [— ]  American  Express  Co.  v.  53  N.  W.  R.  918.  34  Am.  St.  R.  32S; 

Hockett,    30    Ind.    250,    95    Am.    D.  Weed  v.  Barney,  45  N.  Y.  344.  6  Am. 

691-   [_]  Sweet  v.  Barney,  23  N.  Y.  R.  96;    Hutchinson  on  Carriers.  3S9- 

335';   Witbeck  V.  Holland,  45  N.  Y.  393. 

13,  6  Am.   R.   23;  Hayes  v.  Wells.  §284.     Morgan  v.  Dibble,  29  T«. 

119 


§§  285-286  OF  COMMON  CARRIEES. 

aud  the  safety  of  the  goods.  They  must  be  so  placed  as  to  be 
convenient  of  access,  under  such  circumstances  that  the  con- 
signee may  receive  and  take  them  away  with  reasonable  dis- 
patch and  safety.  Until  he  has  had  an  opportunity  to  do  so  the 
carrier  is  bound  to  properly  protect  them  from  untoward 
weather  and  other  injurious  conditions.  Whether  the  delivery 
has  been  made  under  proper  circumstances  is  a  question  of 
fact  to  be  determined  from  all  the  evidence  in  each  case. 

{d)     To  the  Bight  Person. 

§  285.  Carrier  absolutely  liable. — Finally  delivery  must  be 
made  to  the  right  person.  "No  circumstances  of  fraud,  imposi- 
tion, or  mistake  will  excuse  the  common  carrier  from  responsi- 
bility for  delivery  to  the  wrong  person."  Delivery  to  one  not 
entitled  to  receive  them  is  conversion  by  the  carrier,  and  so  is 
refusal  to  deliver  to  the  right  person  when  he  has  properly 
established  his  identity  and  his  right  to  the  goods. 

§  286.  — —Illustrations. — Thus  the  carrier  is  liable  if  he  de- 
livers the  goods  to  the  wrong  party  by  mistake,  or  to  an  agent 
not  authorized  to  receive  them,  or  to  one  who  has  secured 
goods  to  be  sent  by  the  consignor  on  a  forged  order.  If  an 
order  is  sent  in  the  name  of  a  fictitious  firm,  the  carrier  is 
liable  by  the  weight  of  authority  even  though  the  delivery  is 
made  to  the  one  who  sent  the  order.     On  this  however  the 

]08,  94  Am.  D.   264;   McAndrew  v.  Houston  etc.  Eailway  Co.  v.  Adams, 

Whitlock,   52  N.  Y.  40,   11   Am.  E.  49     Tex.     748,     30     Am.     R.     116; 

6.57;       Sonia     Cotton     Oil     Co.     v.  \ — ]    Hawkins    v.    Hoffman,    6    Hill 

Steamer  Red  River,  106  La.  42,  30  (N.     Y.)     586,     41     Am.     D.     767; 

So.    R.    303,    87    Am.    St.    R.    293;  [— ]  McEntee  v.  New  Jersey  Steam- 

[— ]    Seheu  v.  Benedict,   116   N.  Y.  boat  Co.,  45  N.  Y.  34,  6  Am.  R.  28; 

510,  22  N.  E.  R.   1073,   15  Am.  St.  Hutchinson  on  Carriers,  344. 
E-  426.  §  286.     Price  v.   Railroad  Co.,   50 

§  285.      [— ]     Pacific  Express  Co.  N.    Y.  213,  10  Am.  R.  475;  [— ]  Mc- 

V.  Shearer,  160  111.  215,  43  N.  E.  R.  Entee  v.  New  Jersey  Steamboat  Co., 

816,   52   Am.   St.  R.   324;     Price   v.  45  N.  Y.  34,  6  Am.  R.  28;    Samuel 

Oswego   and   Syracuse   Railway   Co.,  v.  Cheney,  135  Mass.  278,  46  Am.  R. 

50  N.  Y.  213,  10  Am.  R.  475;    Shenk  467;    Adams  v.  Blankeustein,  2  Cal. 

V.  Philadelphia  Steam  Propeller  Co.,  413,   56  Am.  D.   350.     But  compare 

60    Pa.    St.    109,   100   Am.   D.    541;  Dunbar     v.     Boston     &     Providence 

Weyand     v.     Atchison,     Topeka     &  Railroad    Corp.,    110    Mass.    26,    14 

Santa  Fe  Railway  Co.,  75  Iowa  573,  Am.   R.    576,   and  Winslow  v.   Rail- 

39  N.  W.  R.  899,  9  Am.  St.  R.  504;  road  Co.,  42  Vt.  700,  1  Am.  R.  365. 

120 


TERMINATION  OF  THE    RELATION.         §§  287-289 

cases  do  not  seem  to  be  entirely  harmonious.  But  if  the  goodB 
were  misdirected,  or  directed  to  a  swindler,  the  carrier  will 
be  justified  by  delivery  according  to  directions.  And  so  he 
will  if  the  consignor  induces  or  ratifies  the  delivery. 

§  287.  Bill  of  lading.— The  bill  of  lading  is  the  representa- 
tive of  the  goods.  To  insure  safety  in  delivering  the  goods  the 
carrier  should  insist  on  the  presentation  of  the  proper  bill  of 
lading  by  one  known  to  the  carrier  to  be  the  consignee,  or  his 
transferee  or  authorized  agent. 

§  288.  Delivery  to  consignee.— Presumptively,  the  con.siguee 
is  the  owner  of  the  goods  and  therefore  ordinarily  delivery 
should  be  made  to  him  or  to  his  transferee.  If  delivery  is  made 
to  any  one  else  the  carrier  is  liable  to  an  action  of  trover  by  any 
rightful  holder  of  the  bill  of  lading.  It  will  however  always  be 
sufficient  excuse  that  delivery  has  been  made  to  tlie  true  owner 
or  according  to  his  directions,  though  contrary  to  the  direc- 
tions of  the  bill  of  lading.  But  in  such  ease  the  carrier  assumes 
the  burden  of  proving  that  he  delivered  to  one  having  para- 
mount rights. 

§  289.  Interpleader. — So  long  as  the  carrier  has  rea.sonable 
ground  for  uncertainty  as  to  the  proper  person  to  whom  deliv- 
ery should  be  made  he  is  justified  in  delaying  for  proper  iden- 
tification. "Reasonable  hesitation  in  a  doubtful  nmtter  is  not 
evidence  of  conversion."  If  need  be  resort  may  be  had  to  the 
courts  to  determine  by  interpleader  or  otherwise  between  rival 
claimants. 

§287.    See  Sec.  224,  ante  and  the  sylvania  Railroad  Co.  v.  Stern,   119 

cases    there    cited,    and    Weyand    v.  Pa.  St.  24,  12  Atl.  R.  756.  4  Am.  St. 

Atchison,  Topeka  &  Santa  Fe  Rail-  E.  62(5. 

way  Co.,  75  Iowa  573,  39  N.  W.  R.  §  289.     Wells  v.  American  Expr«« 

899,  9  Am.  St.  R.  504;     [— ]   Penn-  Co.,  55  Wis.  23,  11  N.  W.  R.  537.  42 

sylvania  Railroad  Co.  v.  Stern,   119  Am.  R.  695;    Shellenberg  v.  Fremont 

Pa.   St.   24,   12   Atl.   R.   756,  4  Am.  etc.   Railroad  Co.,  45   Neb.  487,  63 

St.  R.   626;     [— ]    Shaw  v.  Railway  N.  W.  R.  859,  50  Am.  St.  R.  561; 

Co.,  101  U.  S.  557.  I — 1  McEntee  v.  New  Jersey  Steani- 

§  288.  [— ]  Dyer  v.  Great  boat  Co.,  45  N.  Y.  .34,  6  Am.  R.  2S ; 
Northern  Railway  Co.,  51  Minn.  345,  The  Idaho,  93  U.  S.  575 ;  Fletcher  v. 
53  N.  W.  R.  714,  38  Am.  St.  R.  Fletcher.  7  N.  II.  452.  2S  Am.  D. 
506;  [— ]  Sweet  v.  Barney,  23  N.  359;  llolbrook  v.  Wight.  24  Wend. 
Y.  335;  Wolfe  v.  Missouri  Pacific  (N.  Y.)  168,  35  Am.  D.  607.  Ex- 
Railway  Co.,  97  Mo.  473,  11  S.  W.  tended  note  to  91  Am.  St.  K.  593, 
E.  49,  10  Am.  St.  R.  331 ;  [— ]  Penn-  ;>o.s«  sec.  309. 

121 


§§290-292  OF  COMMON  CAERiEKS. 

Connecting  Carriers. 

^  290.  Delivery  to  a  connecting  carrier. — When  goods  are 
received  to  be  carried  beyond  the  terminus  of  the  carrier's  line 
the  liability  of  such  carrier  is  terminated  by  delivering  the 
goods  to  the  proper  connecting  carrier.  If  the  shipping  receipt 
names  the  connecting  lines  the  shipper's  directions  must  be  fol- 
lowed. Delivery  to  a  different  connecting  carrier  amounts  to 
a  conversion  of  the  goods.  If  no  directions  are  given,  then  the 
customary  or  most  convenient  and  direct  route  should  be  fol- 
lowed. Each  carrier  beyond  its  own  line  is  a  mere  forwarder 
and  is  bound  to  use  ordinary  care. 

§  291.  Duty  to  carry  beyond  carrier's  route. — No  carrier  is 
by  law  compelled  to  carry  goods  to  points  not  on  its  own  line. 
But  any  carrier  may  by  contract  undertake  responsibility,  for 
tlie  whole  transit,  including  other  lines  as  well  as  its  own. 
Such  undertaking  not  being  imposed  by  law,  must  rest  upon  a 
contract,  express  or  implied ;  and  if  a  carrier  by  custom  or  traf- 
fic arrangements  with  other  lines,  or  by  specific  stipulations  in 
its  bills  of  lading,  holds  itself  out  to  carry  beyond  its  own  line 
it  will  be  liable  for  a  refusal  to  perform  such  service. 

^  292.  Partnership  arrangements. — Thus  several  carriers 
frequently  make  joint  or  partnership  arrangements,  the  effect 
of  which  is  to  create  a  mutual  agency  and  to  make  each  liable 

§  290.     [—J     Briggs  v.  Boston  etc.  v.    Eailroads,    99    Tenn.    719,    42   S. 

Eailroad  Co.,  6  Allen   (Mass.)    246,  W.  E.  451,  63  Am.  St.  E.  856;    Per- 

83  Am.  D.  626 ;    Eobinsou  v.  Baker,  kins  v.  Portland  etc.  Eailroad  Co.,  47 

r>  Cush.  (Mass.)  137,  51  Am.  D.  .54;  Me.  573,  74  Am.  D.  507;    Grover  & 

Johnson    v.    Transportation    Co.,    33  Baker   Sewing  Machine  Co.   v.   Mis- 

N.  Y.  610,  88  Am.  D.  416;   Alabama  souri    Pacific    Eailway   Co.,    70   Mo. 

Great     Southern     Eailroad     Co.     v.  672,   35  Am.  E.   444;     [ — ]   Illinois 

Thomas,  89  Ala.  294,  7  S.  E.  762,  18  Central    Eailroad    Co.    v.    Franken- 

Am.  St.  E.  119;    Knight  v.   Provi-  berg,    54    111.    88,    5    Am.    E.    92; 

dence  &  Worcester  Eailroad  Co.,  13  | — J    Bullard   v.   American   Express 

E.  I.  572,  43  Am.  E.  46;    Hadd  v.  Co.,  107  Mich.  695,  65  N.  W.  E.  551, 

Express  Co.,  52  Vt.  335,  36  Am.  E.  61  Am.  St.  E.  358,  371,  note. 

757;    Eawson  v.  Holland,  59  N.  Y.  §292.      [— ]      Champion  v.   Bost- 

611,  17  Am.  E.  394.  wick,  18  Wend.  (N.  Y.)  175,  31  Am. 

§291.      Myrick  v.   Michigan   Cen-  D.  376;  Fitehburg  etc.  Eailroad  Co. 

tral  Eailroad  Co.,  107  U.  S.  102,  1  v.   Hanna,   6   Gray    (Mass.)    539,   66 

Sup.    Ct.   425;     Hill  Manufacturing  Am.  D.  427;    [— ]   Nashua  Lock  Co. 

Co.  V.  Boston  &  Lowell  Eailroad  Co.,  v.  Worcester  &  Nashua  Eailroad  Co., 

104  Mass.  122,  6  Am.  E.  202;    Bird  48  N.  H.  339,  2  Am.  E.  242;    Eocky 

122 


TEEiUNATION  OF  THE    KELATIOX.         §§293-294 

for  the  acts  and  contracts  of  all.  Such  are  agreements  to  divide 
expenses  and  profits  pro  rata,  to  jointly  employ  common  agents, 
to  receive  and  carry  goods  and  cars  on  through  arrangements. 
Whether  agreements  create  joint  liability  is  to  be  determined 
from  the  facts  of  each  case.  Giving  through  rates,  shipping  in 
a  through  car,  receiving  prepayment  of  freight  for  the  whole 
route,  and  receiving  goods  "to  forward"  are  evidences  of  such 
joint  arrangements  which  have  been  considerfd  suftieicut  t<i 
justify  a  jury  in  finding  the  contract  to  Ix-  t>u>-  foi-  I'l rough 
transportation. 

§293.  Goods  directed  beyond  carrier's  terminus. — lu  Eng- 
land and  several  of  the  American  states  the  rule  of  Musehamp's 
case  is  followed,  according  to  Avhich  the  acceptance  of  goods 
directed  to  a  point  beyond  the  carrier's  line  is  prima  facie  evi- 
dence of  a  contract  for  through  transit.  In  the  absence  of  a 
contract  to  the  contrary  or  of  facts  that  deny  the  presumption, 
the  initial  carrier  so  receiving  the  goods  assumes  liability  for 
through  transportation.  This  rule  finds  its  justification  in  the 
hardship  of  compelling  the  shipper  to  locate  the  particular  car- 
rier on  whose  road  the  loss  occurred. 

§  294.  American  rule. — By  the  great  weight  of  authority  in 
the  United  States  a  carrier  by  the  mere  acceptance  of  goods 

Mount     Mills     v.     Wilmington     etc.  v.  Vanderbilt,  17  X.  Y.  306,  "L*  Am. 

Eailroad  Co.,  119  N.  C.  693,  25  S.  E.  D.  469. 

E.  854,  56  Am.  St.  R.  682 ;    Missouri  §294.     [— ]     McMillan   v.    Michi- 

Pacific    Railway    Co.    v.    Twiss,    35  gan  Southern  etc.  Railroad  Co..   16 

Neb.  267,  53  N.  W.  R.  76,  37  Am.  -Midi.       79,      93      Am.      D.      20S; 

St.  R.  437;    Bradford  v.  South  Caro-  |  — J    Quimby   v.   Vanderbilt,    17    N. 

lina  Railroad  Co.,  7  Rich.  L.  (S.  C.)  Y.  306,  72  Am.  D.  469;    Myriok  v. 

201,  62  Am.  D.  411.     See  also  the  Michigan  Central  Railroad  Co..  107 

note   to   72   Am.   D.   238,   and   com-  U.      S.      102,      1      Sup.      Ct.     425; 

pare  Irvin  v.  Nashville  etc.  Railroad  [— ]   Nashua  Lock  Co.  v.  Worcester 

Co.,  92  111.  103,  34  Am.  R.  116,  with  &   Nashua   Railroad   Co.,  48   N.    H. 

Hot  Springs  Railroad  Co.  v.  Trippe,  339,     2     Am.     R.     242;      Alabama 

42  Ark.  465,  48  Am.  R.  65.  Great     Southern     Railway     ^o.^v. 

§  293.      Muschamp    v.    Lancaster  Thomas,  89  Ala.   294,   7  S.   R.   762. 

etc.  Railway  Co.,  8  Mees.  &  W.  421;  18  Am.  St.  R.  119;  Knight  v.  Provi- 

Erie  Railway  Co.  v.  Wilcox,  84  111.  dence  &  Worcester  Railroad  Co.,  13 

239,   25  Am.  R.   451;     [-]    Illinois  R.  L  572,  43  Am.  R.  46;  Burroughs 

Central    Railroad    Co.    v.    Franken-  v.    Norwich    &    Worcester    Railroad 

berg,  54  111.  88,  5  Am.  R.  92.     See  Co.,    100   Mass.   26,    1    Am.   R.    7S: 

also  [— ]  Nashua  Lock  Co.  v.  Wor-  Hadd  v.  Express  Co.,  52  Vt.  33.'i.  .16 

cester  &  Nashua  Railroad  Co..  48  N.  Am.  R.  757.     See  also  Gniy  v.  .lark- 

H.  339,  2  Am.  R.  242;    I—]  Quimby  son,  51  N.  H.  9,  12  Am.  R.  I. 

123 


^<  295-297  ^^  COMMOX  CAKRIERS. 

directed  to  a  point  not  on  its  own  line  undertakes  to  perform 
its  part  of  the  carriage  and  to  deliver  the  goods  to  the  next 
connecting  carrier  for  further  transportation.  Prima  facie  the 
responsibility  of  each  carrier  is  limited  to  its  own  line,  and 
delivery  to  the  next  connecting  line. 

§  295.  Special  contract.— But  whatever  the  rule  as  to  what 
facts  are  sufficient  to  show  a  through  contract,  it  is  settled  not 
only  that  a  carrier  may  by  special  contract  assume  liability  for 
through  shipment,  but  that  he  may  also  relieve  himself  of  all 
liability  beyond  his  own  line.  Such  limitations  are  inserted  in 
most  modern  shipping  contracts. 

Under  the  American  rule  the  local  freight  agent  has  no  im- 
plied power  to  make  through  contracts  contrary  to  the  custom 
and  instructions  of  his  principal.  Only  the  general  agent  has 
such  power. 

§  296.  Carriers  agents  of  the  consignor. — It  has  been  seen 
that  when  several  carriers  form  a  line  under  joint  arrangements 
each  is  the  agent  of  the  others  for  transportation.  But  when 
the  liability  of  each  carrier  is  limited  to  his  own  line  the  con- 
signor constitutes  each  carrier  his  forwarding  agent  for  whose 
acts  he  is  liable,  and  who  in  turn  is  liable  to  him  as  principal 
for  any  failure  to  follow  instructions  in  forwarding  the  goods. 

§  297.     What  amounts  to  delivery  to  a  connecting  carrier. — 

The  shipper  has  a  right  to  understand  that  the  liability  as  a 
common  carrier  is  upon  some  one  during  the  whole  period  of 
the  transportation.     The  liability  of  one  carrier  is  not  dis- 

§  295.     [— ]     Nashua  Lock  Co.  v.  cific   Railway    Co.,    70    Mo.    672,    3-5 

Worcester   &   Nashua  Railroad   Co.,  Am.  R.  444. 

48  N.  H.  339,  2  Am.  R.  242 ;  §  296.  [— ]  Briggs  v.  Boston  & 
[ — ]  Quimby  v.  Vanderbilt,  17  N.  Lowell  Railroad  Co.,  6  Allen 
Y.  306,  72  Am.  D.  469;  Perkins  v.  (Mass.)  246,  83  Am.  D.  626;  John- 
Portland  etc.  Railroad  Co.,  47  Me.  son  v.  Transportation  Co.,  33  N.  Y. 
573,  74  Am.  D.  507;  [— ]  Hansen  610,  88  Am.  D.  416;  Missouri  Pa- 
V.  Flint  &  P.  M.  Railroad  Co.,  73  cific  Railway  Co.  v.  Twiss,  35  Neb. 
Wis.  346,  41  N.  W.  R.  529,  9  Am.  267,  53  N.  W.  R.  76,  37  Am.  St.  R. 
St.  R.  791 ;  Wheeler  v.  San  Fran-  437 ;  Halliday  v.  St.  Louis  etc.  Rail- 
cisco  etc.  Railroad  Co.,  31  Cal.  46,  way  Co.,  74  Mo.  159,  41  Am.  R.  309. 
89  Am.  D.  147;  Cincinnati  etc.  §297.  [ — ]  Condon  v.  Mar- 
Railroad  Co.  V.  Pontius,  19  Ohio  St.  quette  etc.  R.  R.  Co.,  55  Mich. 
221,  2  Am.  R.  391;  Burroughs  v.  218,  21  N.  W.  R.  321,  54  Am.  R. 
Norwich  etc.  Railroad  Co.,  100  Mass.  367 ;  Irish  v.  Milwaukee  &  St. 
26,  1  Am.  R.  78;  Grover  &  Baker  Paul  Railway  Co.,  19  Minn.  376.  18 
Sewing  Machine  Co.  v.  Missouri  Pa-  Am.  R.  340;    Kawson  v.  Holland,  59 

124 


TERMINATION  OF  THE    RELATION. 


§298 


charyvd  until  that  of  the  next  connecting  carrier  has  been  as- 
sumed ;  and  this  does  not  take  place  until  there  is  a  delivery  of 
the  f,'oods  to  the  succeeding  carrier,  or  such  a  notification  as 
according  to  the  course  of  business  is  equivalent  to  a  tender  of 
delivery. 

A  carrier  does  not  by  storing  the  goods  at  the  end  of  his  own 
line  become  a  warehouseman,  but  remains  a  common  carrier  of 
the  goods  until  he  has  made  a  proper  tender  thereof  to  the  suc- 
ceeding carrier,  or  has  performed  such  acts  as  are  tantamount 
to  a  delivery.  Thus  he  may  notify  tlie  next  carrier  that  the 
goods  have  been  placed  where  such  carrier  usually  receives 
them,  or  if  such  be  the  custom  between  the  carriers  he  may 
leave  them  without  notice.  If  the  connecting  carrier  refuses 
to  receive  them,  the  first  carrier  must  properly  store  them  and 
notify  the  consignor  or  the  consignee. 

§  298.  Presumption  as  to  carrier  liable. — Conditions  once 
proved  to  have  existed  are  presumed  to  contiiuu*  until  the  con- 
trary is  shown  is  the  principle  applied  in  fastening  responsibil- 
ity for  loss  when  it  does  not  appear  on  which  of  several  con- 
necting lines  the  damage  was  done.  Prima  facie  that  carrier  is 
liable  in  whose  possession  the  goods  are  found  in  a  damaged 
condition,  but  in  the  United  States  an  action  can  be  maintained 


N.  Y.  611,  17  Am.  R.  394;  |— J  .Jiul- 
son  V.  Western  Railroad  Corp.,  4 
Allen  (Mass.)  520,  81  Am.  D.  718; 
Lewis  V.  Chesapeake  &  Ohio  Rail- 
way Co.,  47  W.  Va.  656,  35  S.  E.  R. 
908,  81  Am.  St.  R.  816;  Gass  v. 
New  York  etc.  Railroad  Co.,  99 
Mass.  220,  96  Am.  D.  742;  Ladue 
V.  Griffith,  25  N.  Y.  364,  82  Am.  D. 
360;  Conkey  v.  Milwaukee  &  St. 
Paul  Railway  Co.,  31  Wis.  619,  11 
Am.  R.  630;  Johnson  v.  Transpor^a- 
tion  Co.,  33  N.  Y.  610,  88  Am.  D. 
416;  Grand  Rapids  &  Indiana  Rail- 
road Co.  V.  Diether,  10  Ind.  App. 
206,  37  N.  E.  R.  39,  53  Am.  St.  R. 
385;  Goold  v.  Chapin,  20  N.  Y.  259, 
75  Am.  D.  398. 

§  298.  Laughlin  v.  Chicago  & 
North  Western  Railway  Co.,  28  Wis. 
204,  9  Am.  R.  493;  [—1  Moore  v. 
New    York    etc.    Railroad    Co.,    173 


Mass.  335,  53  N.  E.  R.  SIG,  73  Am. 
St.  R.  298;  Shriver  v.  Sioux  City 
etc.  Railroad  Co.,  24  ^[inn.  506,  31 
Am.  R.  353;  Cooper  v.  Georgia  Pa- 
cific Railway  Co.,  92  Ala.  329,  9  S. 
R.  159,  25  Am.  St.  R.  59;  Savannah 
etc.  Railroad  Co.  v.  Harris,  26  Fla. 
148,  7  S.  R.  544,  23  Am.  St.  R.  551 ; 
[ — ]  Hinkle  v.  Southern  Railway 
Co.,  126  N.  C.  932,  35  S.  E.  K.  81(», 
78  Am.  St.  R.  685;  [— ]  Morganton 
Mfg.  Co.  V.  Ohio  River  etc.  Railway 
Co.,  121  N.  C.  514,  28  S.  E.  R.  474. 
61  Am.  St.  R.  679;  Beard  v.  Illinois 
Central  Railway  Co.,  79  Iowa,  518. 
44  N.  W.  R.  800,  IS  Am.  St.  R.  381 : 
Texas  &  Pacific  Railway  C»».  v. 
Adams.  78  Tex.  372,  14  S.  W.  R. 
666,  22  Am.  St.  R.  56;  Missouri  Pa- 
cific Railway  Co.  v.  Twis.s.  35  Neb. 
267,  53  N.  W.  R.  76,  37  Am.  St.  R. 
437. 


125 


^'^  299-301  OF  COMMON  CARRIERS. 

against  any  previous  carrier  to  whose  default  the  loss  is  due. 
Under  the  English  rule  only  the  initial  carrier  can  be  sued.  In 
any  case,  if  there  has  been  a  recovery  against  one  carrier  he 
has  an  action  over  against  the  carrier  Avhose  fault  caused  the 
injury. 

^  299.  Benefit  to  connecting  carrier  of  contract  exemptions. 
— A  connecting  carrier  is  entitled  to  the  benefit  of  limitations 
of  liability  in  the  shipping  contract  only  when  the  initial  car- 
rier contracted  for  through  transportation,  or  stipulated  that 
the  exemptions  in  the  bill  of  lading  should  inure  to  the  benefit 
of  all  the  carriers  engaging  in  the  transportation  of  the  goods. 
As  such  contracts  are  strictly  construed  no  exemptions  granted 
to  the  initial  carrier  who  undertakes  only  to  receive  the  goods 
and  deliver  them  to  the  next  connecting  carrier  will,  by  mere 
implication,  be  extended  to  later  carriers  on  the  route. 

§  300.  Delivery  to  a  warehouseman. — Except  in  cases  where 
the  carrier  is  bound  to  make  personal  delivery  it  is  usually 
proper  to  make  delivery  to  a  warehouseman.  As  has  already 
been  explained,  carriers  by  boat  and  by  rad  have  always  been 
allowed  to  make  such  delivery,  and  delivery  by  a  railroad 
from  itself  as  a  common  carrier  to  itself  as  a  warehouseman  at 
the  destination  of  the  goods  terminates  its  liability  as  a  com- 
mon carrier,  and  substitutes  the  liability  of  a  warehouseman. 

>j  301.    What  constitutes  delivery  to  a  w^arehouse  so  as 

to  terminate  liability  as  a  carrier  is  a  question  upon  which 
three  rules  may  be  noticed,  resulting  from  three  views  as  to  the 
moment  when  the  carrier  has  performed  his  full  duty  as  car- 
rier. All  agree  that  when  such  duty  has  been  fully  performed 
liability  as  carrier  immediately  changes  to  that  as  warehouse- 
man. These  three  rules  have  been  ably  set  forth  by  the  courts 
of  Massachusetts,  New  Hampshire  and  Michigan  respectively, 

§  299.  [— ]  McMillan  v.  Michi-  v.  Boston  &  Maine  Railroad  Co.,  1 
gan  Southern  etc.  Railroad  Co.,  16  Gray  (Mass.)  263,  61  Am.  D.  423; 
Mich.  79,  93  Am.  D.  208 ;  Bird  v.  [— ]  Moses  v.  Boston  &  Maine  Rail- 
Railroads,  99  Tenn.  719,  42  S.  W.  road  Co.,  32  N.  H.  523,  64  Am.  D. 
R.  451,  63  Am.  St.  R.  856 ;  Maghee  S81 ;  Thomas  v.  Boston  &  Provi- 
V.  Camdeu  &  Amboy  Railroad  Co.,  45  dence  Railroad  Corp.,  10  Mete. 
N.  Y.  514,  6  Am.  R.  124;  Halliday  (Mass.)  472,  43  Am.  D.  444;  Tar- 
V.  St.  Louis  etc.  Railway  Co.,  74  Mo.  bell  v.  Royal  Exchange  Shipping  Co., 
159,  41  Am.  R.  309;  Faulkner  v.  110  N.  Y.  170,  17  N.  E.  R.  721,  6 
Hart,  82  N.  Y.  413,  37  Am.  R.  574.  Am.  St.  R.  350. 

§300.     [—J     Norway  Plains  Co. 

126 


TERMINATION  OF  THE    RELATION.  §§302-304 

and  for  coiivonience  will  be  called  the  Massachusetts,  New 
Hampshire  and  INIiehigan  rules. 

§  302.     The  Massachusetts  rule  is  that  the  duty  assumed 

by  the  railroad,  to  which  shippers  are  presumed  from  their 
knowledge  of  that  custom  to  assent,  is  to  carry  the  goods  safely 
to  their  destination  and  there  discharge  them  at  their  ware- 
house read}"  to  be  taken  by  the  consignee.  As  soon  as  the 
goods  are  so  stored  the  railroad  becomes  a  warehouseman.  If 
the  railroad  is  not  to  unload  the  goods  then  its  duty  as  carrier 
ends  when  the  car  has  been  delivered  in  a  convenient  position 
for  unloading.  This  rule  has  the  advantajre  of  being  "plain, 
precise,  practical  and  of  easy  application."'  That  it  is  also 
"v;ell  adapted  to  the  security  of  ail  persons  interested"  has 
been  often  denied. 

§  303.    The  New  Hampshire  rule  is  that  the  liabilitv  of 

the  railroad  as  carrier  continues  until  the  owner  or  consignee 
has  actually  received  the  goods,  or  until  he  has  had  a  reason- 
able opportunity  after  their  arrival  to  inspect  and  remove  them 
in  the  common  course  of  business. 

The  extent  of  this  reasonable  opportunity,  however,  is  not 
to  be  measured  by  any  peculiar  circumstance  in  the  condition 
and  situation  of  the  consignee  requiring  longer  time  or  better 
opportunity  than  if  he  lived  in  the  vicinity  of  the  warehouse 
and  had  adequate  facilities  for  taking  the  goods  away. 

§304.     The  Michigan  rule  declares  that  "the  liability 

of  the  carrier  continues  until  the  consignee  has  been  notified 
of  the  receipt  of  the  goods  and  has  had  reasonable  time  in  the 

§  302.      [— ]      Norway  Plains  Co.  §  303.      [— ]      Moses  v.  Boston  & 

V,  Boston  &  Maine  Railroad  Co.,  1  Maine  Railroad  Co.,  32  N.  H.  523, 

Gray   (Mass.)   263,  61  Am.  D.  423;  64    Am.    D.    381;      Blumenthal    v. 

Rice  V.  Hart,  118  Mass.  201,  19  Am.  Brainerd,    38   Vt.   402,    91    Am.    D. 

E.  433;     Chicago  &  North  Western  349;    Winslow  v.  Vermont  &  Ma.ssa- 

Eailway  Co.  v.  Sawyer,  69  111.  285,  chusotts  Railroad  Co.,  42  Vt.  700,  1 

18  Am.  R.  613;    Bansemer  v.  Toledo  Am.  R.   365;    Wood  v.   Crocker,   18 

&  Wabash  Railway  Co.,  25  Ind.  434,  Wis.  363,  S6  Am.  D.  773. 
87   Am.   D.   367;     Gregg  v.   Illinois  §304.     [  —  1     McMillan   v.    Michi- 

Central  Railroad   Co.,   147   111.   550,  gan   Southern   etc.  Railroad  Co.,   16 

35  N.  E.  R.  343,  37  Am.  St.  R.  238 ;  Mich.  79,  93  Am.  D.  208 ;    Faulkner 

Gashweiler  v.  Wabash  etc.  Railway  v.   Hart,   S2   N.  Y.  413,  37  Am.   K. 

Co.,  83  Mo.  112,  53  Am.  R.  558;  In-  574;      |  — |     Ziim     v.     New    Jersey 

dependence  Mills  Co.  v.  Burlington  Steamboat  Co.,  49  N.  Y.  442,  10  Am. 

etc.  Railway  Co.,  72  Iowa  535,  34  N.  R.    402 ;      Hutchinson    on    Carriers, 

W.  R.  320,  2  Am.  St.  E.  258.  §§  373-374. 

127 


*5^  305-306  ^^^   COMMON    CAERIERS. 

connuon  course  of  l)usi.u'ss  to  take  them  away  after  such  noti- 
fication." .  „  ^,  .     , 

This  modification  ^n-ows  out  of  the  uncertainty  of  the  arrival 
of  sliipments  ].v  frei^^ht,  and  the  impracticability  of  requirmj; 
the  eonsi-nee.  who  is  unwilling  to  entrust  the  goods  to  the  rail- 
road as  warehouseman,  to  watch  from  day  to  day  the  arrival 
of  trains.  It  is  more  reasonable  to  require  the  carrier  to  give 
notice  to  the  consignee,  and  to  the  carrier  himself  this  is  less 
burdensome  than  to  be  subjected  to  numberless  inquiries. 

In  some  of  the  states  some  cases  are  to  be  found  using  the 
language  of  the  Michigan  rule  and  others  using  that  of  the 
New  Hampshire  rule,  and  failing  to  notice  any  distinction 
between  the  two. 

i5  305.  Delivery  by  carriers  by  water.— Carriers  by  water 
have  never  been  reciuired  to  make  personal  delivery.  If  the 
consignee  is  not  present  to  receive  the  goods  they  may  be 
landed  on  a  proper  wharf  and  notice  of  their  arrival  must  be 
sent  to  the  consignee.  It  is  difficult  to  find  any  substantial 
reason  for  a  different  rule  in  case  of  railroads,  and  to  preserve 
consistency  some  courts  that  excuse  the  railroad  company 
from  giving  notice  have  held  that  ships  running  on  a  regular 
schedule  and  having  regular  warehouses  for  the  delivery  of 
goods  are  not  required  to  give  notice.  It  is  always  competent 
to  show  usage  to  make  delivery  without  notice. 

§  306.     Mannel-  of  delivery. — A  carrier  by  water  does 

not  perform  its  duty  as  a  carrier  by  a  mere  discharge  of  the 
goods  upon  the  wharf.  The  consignee  must  have  a  reasonable 
time  after  notice  of  their  arrival  in  which  to  remove  the  goods, 

In  Shenk  v.  Steam  Propeller  Co.,  Turner  v.  HufP,  46  Ark.  222,  55  Am. 

60  Pa.  St.  109,  100  Am.  D.  541,  Ian-  E.  580;  Farmers  &  Mechanics'  Bank 

guage  is  used  that  seems  to   recog-  v.   Chaplain   Transportation   Co.,   16 

nise  each  of  the  three  rules.  Vt.  52,  42  Am.  D.  491,  18  Vt.  131, 

§  305.     Richardson  v.  Goddard,  23  ,23  Vt.  186,  56  Am.  D.  68. 

How.  (U.  S.)  28;    [—1  Zinn  v.  New  §  306.     Tarbell  v.  Royal  Exchange 

Jersey  Steamboat  Co.,  49  N.  Y.  442,  Shipping  Co.,  110  N.  Y.  170,  17  N. 

10    Am.    R.    402;      [— ]     Scheu    v.  E.    R.    721,    6    Am.    St.    R.     350; 

Benedict,   116  N.  Y.  510,  22  N.  E.  |— 1    Scheu  v.  Benedict,  116  N.  Y. 

R.  1073,  15  Am.  St.  R.  426;    Tarbell  510,  22  N.  E.  R.  1073,  15  Am.  St. 

V.  Royal  Exchange  Shipping  Co.,  110  R.   426 ;     Shenk  v.   Steam  Propeller 

N.  Y.  170,  17  N.  E.  R.  721,  6  Am.  Co.,  60  Pa.  St.  109,  100  Am.  D.  541; 

St.    R.    350;     Gibson   v.    Culver,    17  Richmond  v.   Steamboat   Co.,   87  N. 

Wend.  (N.  Y.)  305,  31  Am.  D.  297;  Y.  240. 

128 


TER]\UNATION  OF  THE    RELATION.         §§307-309 

arid  in  the  meantime  they  must  not  be  left  by  the  carrier  un- 
protected in  an  exposed  condition.  If  the  carrier  does  not  re- 
move them  within  a  reasonable  time  they  must  be  properly 
stored  and  not  until  then  is  the  carrier  divested  of  his  respon- 
sibility. 

The  consignee  cannot  prolong  liability  by  delaying  to  receive 
the  goods,  but  neither  can  he  be  required  to  take  them  on  Sun- 
day or  a  legal  holiday  or  in  weather  that  threatens  injury  to 
them.  The  carrier  must  deliver  them  at  the  usual  wharf,  or  if 
there  be  no  regular  wharf  then  at  a  suitable  wharf  designated 
by  the  shipper,  or  by  a  majority  of  several  shippers. 

§  307.  Delivery  to  an  elevator. — Some  peculiar  (lui-stions 
liave  arisen  as  to  the  delivery  of  grain  by  a  carrier.  If  there 
is  no  designated  elevator,  and  the  grain  is  not  at  once  removed 
by  the  consignee,  the  carrier  may  leave  it  in  the  cars,  or  store 
it  in  a  suitable  elevator  at  the  risk  and  expense  of  the  owner. 
But  if  the  grain  is  consigned  to  a  particular  elevator  the  car- 
rier must  deliver  it  at  that  elevator  unless  it  is  situated  off  the 
line  of  that  carrier.  Mandamus  will  lie  against  the  carrier 
to  compel  the  performance  of  this  duty,  but  no  carrier  can  be 
compelled  to  carry  over  lines  not  owned  or  controlled  by  it. 
In  Illinois  there  are  statutes  regulating  delivery  lo  public 
elevators. 

(2)     Acts  Excusing  Non-Delivery. 

§  308.  Excepted  perils. — Failure  to  deliver  the  goods  to  the 
consignee  will  of  course  be  excused  if  occasioned  by  any  of 
the  excepted  perils  (sec.  231),  or  by  a  cause  against  which  the 
carrier  has  contracted  in  the  bill  of  lading.  Rut  even  in  these 
eases,  as  has  been  seen,  the  carrier  is  afforded  no  excuse  if  his 
negligence  proximately  contributed  to  the  loss  (sees.  235  and 
237). 

§  309.  Paramount  owner. — The  carrier  cannot  avail  himself 
of  the  title  of  a  third  person,  even  the  true  owner,  to  keep  the 

§307.      Gregg   v.   Illinois   Central  §309.     The  Iilaho,  93  U.  S.  575; 

Eailroad  Co.,  147  111.  550,  35  N.  E.  King   v.   Richards,   G   Whart.    (Pa.) 

R.  343,  37  Am.  St.  E.  238;    [— I  Chi-  418,  37  Am.  D.  4:20;    Wells  v.  Araer- 

cago  &  Northwestern  Railway  Co.  v.  ii:ui  Express  Co.,  55  Wis.  23.  11  N. 

People,  56  111.  365,  8  Am.  R.  690;  W.  R.  537,  42  Am.  R.  695;  Wo^o  v. 

People  V.  Chicago  &  Alton  Railro:nl  .Mis-oiiri  Pacifi.-  Railway  Co.,  97  Mo. 

Co.,  55  111.  95,  8  Am.  R.  631.  17:"-.   H   >^.  ^V•   l'"-   l^'.  10  Am.  St.  R. 
9                                                  12'J 


§  310  OF  COMMON  rARETEKS. 

iji-opert.y  for  liiiuself  as  against  the  sliippcr  oi-  his  consifinci'  or 
assignee :  neither  can  he  of  his  own  motion  set  up  against  the 
l)ailor  such  claims  of  third  persons;  but  when  the  true  owner 
has  demanded  his  property  the  carrier  is  bound  to  deliver  to 
liim,  and  such  delivery  to  the  paramount  owner  is  a  complete 
defense  against  the  claim  of  the  bailor.  The  carrier  however 
assumes  the  burden  of  proving  the  ownership  and  right  to  im- 
mediate possession  of  the  third  person  at  the  time  of  the  de- 
livery. 

The  safe  course  for  the  carrier  who  finds  himself  embar- 
rassed by  such  conflicting  claims  is  to  hold  the  goods  a  suffi- 
cient time  to  satisfy  his  reasonable  doubts  as  to  the  party  to 
Avhom  delivery  should  be  made.  This  he  has  a  right  to  do. 
The  carrier  may  then  deliver  the  goods  to  one  of  the  claim- 
ants, taking  from  him  a  bond  of  indemnity  against  loss  if  the 
other  claim  should  prove  paramount.  Or  the  parties  may  be 
compelled  to  settle  their  claims  by  interpleader  in  court  where 
there  are  such  relations  between  them  as  to  permit  that  pro- 
ceeding. The  tendency  of  modern  cases  and  statutes  is  to 
ignore  the  early  requirement  of  privity  between  the  parties  as 
an  essential  requisite  to  the  right  to  a  bill  of  interpleader. 

§  310.  Stoppage  in  transitu  of  the  goods  may  excuse  the 
carrier  for  non-delivery  to  the  consignee.  If  a  vendor  sells 
goods  on  credit  to  a  vendee  whom  he  afterwards  discovers  to 
be  insolvent,  he  has  a  right  to  stop  the  goods  in  the  hands  of 
the  carrier  at  any  time  during  the  transit.  For  this  purpose 
transit  continues  until  the  carrier  has  surrendered  control  of 
the  goods  to  the  vendee,  or  to  his  hona  fide  transferee  of  the  bill 
of  lading.  It  is  enough  if  the  carrier  has  consented  to  keep  the 
goods  as  bailee  of  the  vendee,  but  so  long  as  the  carrier  holds 

331;    Holbrook  v.  Wight,  24  Wend.   '    van,   13  Kau.   251.   19   Am.   R.   84; 

(X.  Y.)  168,  85  Am.  D.  607;  Hiitcli-  Farrell  v.  Richmoud  &  Danville  Rail- 

inson  on  Carriers,  404-408,   34  Am.  road  Co.,  102  N.  C.  390,  9  S.  E.  R. 

St.  R.  731,  Note,  ante,  §  289.    As  to  302,   11  Am.   St.  R.   760 ;   Langstaff 

interpleader  generally  see  91  Am.  St.  v.  Stix,  64  Miss.  171,  1  S.  R.  97,  60 

R.  593  and  extended  note.  Am.    R.    49;    Brewer  v.     Boston     & 

§  310.      Branau    v.    Atlanta    etc.  Albany  Railroad  Co.,  179  Mass.  228, 

Railroad  Co.,  108  Ga.  70,  33  S.  E.  R.  60  N.  E.  R.  548,  88  Am.  St.  R.  375; 

836,  75  Am.  St.  R.  26;     [— ]  Potts  .Teffris    v.    Fitchburg  Railroad    Co., 

V.  New  York  &  New  England  Rail-  93  Wis.   250,  67   N.  W.  R.  424,  57 

road  Co.,  131  Mass.  455,  41  Am.  R.  Am.  St.  R.  919;    Ocean  Steamship 

247;   Loeb  v.  Peters,  63  Ala.  243,  35  Co.  v.  Ehrlich,  88  Ga.  502,  14  S.  E. 

Am.  R.   17;    [— ]  Rneker  v.   Dono-  R.  707,  30  Am.  St.  R.  164. 

130 


TEEMINATION  OF  THE   RELATION.  §§  311-313 

the  goods  to  maintain  his  special  lien  for  the  carrying  charges, 
pinma  facie  the  transit  has  not  ended.  The  i^oocLs  are  .still  sub- 
ject to  stoppage. 

§  311. Right  how  exercised.— Only  the  vend(»r  or  his 

agent  can  exercise  this  right,  and  it  must  be  exercised  against 
one  actually  insolvent  at  the  time,  though  his  insolvency  may 
not  have  been  declared.  Simple  notice  to  the  carrier  to  hold 
the  goods  subject  to  the  vendor's  orders  is  sufficient  to  bring 
about  the  stoppage  of  the  goods.  This  notice  may  Ix-  to  the 
agent  or  servant  of  the  carrier  in  actual  possession  of  the  goods, 
or  to  any  authorized  agent  of  the  carrier  under  such  circum- 
stances as  to  make  it  reasonably  possible  to  give  the  necessary 
orders  to  the  agent  in  actual  possession.  The  vendor  must  pay 
the  carrier  all  charges  on  the  goods,  but  the  carrier  cannot 
hold  the  goods  as  security  for  other  impaid  charges  of  the 
vendee. 

§312.    Improper  exercise  of  the  right. — If  the  vendee 

is  not  really  insolvent  the  vendor  is  liable  in  damages  for  the 
stoppage,  but  it  is  believed  the  carrier  incurs  no  risk  by  heed- 
ing a  notice  to  hold  the  goods  for  the  vendor,  unless  he  holds 
them  with  knowledge  of  the  solvency  of  the  vendee.  As  against 
the  vendor  the  carrier  may  insist  upon  reasonabl»>  evidence  of 
the  validity  of  his  claim. 

§  313.  Inability  to  find  the  consignee  may  furnish  an  excuse 
for  non-delivery.     He  may  be  dead,  absent,  or  unknown,  and 

§311,     [_]     Eucker  v.  Donovan,  Am.    R.    475;      f— 1    Zinn    v.    New 

13  Kan.  251,  19  Am.  E.  84;  [— ]  Al-  Jersey  Steamboat  Co.,  49  X.  Y.  44'_', 

len  V.  Maine  Central  Railroad  Co.,  10    Am.    R.    402,    The    Thames,    14 

79  Me.  327,  9  Atl.  R.  895,  1  Am.  St.  Wall.   (U.  S.)    98;   Witbeck  v.  Hol- 

R.    310;      Farrell    v.    Richmond    &  land,   45   N.   Y.   13,   6   Am.    R.    23; 

Danville  Railroad  Co,  102  N.  C.  390,  Adams   Express   Co.    v.   Darnell,    31 

&  S.  E.  R.  302,  11  Am.  St.  R.  760;  Ind.  20,  99  Am.  D.  582;   Bansemer 

Langstaff  v.  Stix,  64  Miss.   171,  60  v.    Toledo    &   Wabash    Railway   Co., 

Am.  R.  49 ;    Wheeling  &  Lake  Eric  25     Ind.     434,     87     Am.     D.     367; 


Railroad  Co.  v.  Koontz,  61  Ohio  St 
551,  56  N.  E.  R.  471,  76  Am.  St.  R 
435. 

§  312.     [ — ]     Allen  v.  Maine  Cen 
tral  Railroad  Co.,  79  Me.  327,  9  Atl 


1 — 1  Fisk  V.  Newton.  1  Denio  (N. 
Y.)  45,  43  Am.  D.  649;  [— ]  Ameri- 
can Express  Co.  v.  Hockett,  30 
Ind.  250,  95  Am.  D.  691;  Mor- 
gan V.  Dibble,  29  Tex.  108,  94  Am. 


R    895    1  Am.  St.  R.  310,  The  Vi-       D.  264;    [— ]  Scheu  v.  Benedict,  116 
dette,  34  Fed.  R.  396.  N.  Y.  510,  22  N.  E.  R.  1073,  15  Am. 

§  313.     Price  v.  Oswego  &  Syra-       St.  R.  426. 
cuse  Railway  Co..  50  N.  Y,  213,  10 

131 


j;  ;>l;]  OF  COMMON   ( 'AKKl  KKS. 

111.'  cjii-fit'i-  jil'tcr  due  ert'oi'is  may  be  uiuihle  to  find  liiiii.  Tlie 
carrier  may  then  discharge  himself  from  further  resi)()nsibiiity 
by  placing-  the  goods  in  store  with  a  responsible  party  to  hold 
as  warehouseman  for  the  owner.  But  the  law  requires  that 
diligent  and  careful  inciuiry  be  made  for  the  consignee,  and  if 
the  carrier  fails  to  do  this  he  remains  liable  as  a  common  car- 
rier. In  jurisdictions  where  railroads  are  not  bound  to  give 
notice  to  the  consignee  they  are  of  course  excused  from  this 
duty. 

The  carrier's  duty  to  deliver  and  the  consignee's  duty  to  re- 
ceive are  reciprocal.  The  consignee  cannot  by  his  act  prolong 
the  period  of  the  carrier's  liability  as  a  common  carrier.  If 
therefore  the  consignee  refuses  or  fails  to  accept  the  goods  the 
carrier's  extraordinary  liability  ceases.  However,  he  is  not 
justified  in  abandoning  the  goods  or  in  negligently  exposing 
them  to  injury,  but  he  becomes  charged  with  the  duty  of  prop- 
erly storing  the  goods  and  notifying  the  consignor. 


'/•. 


132 


PART  IV. 
OF   QUASI-BAILEES. 


CHAPTER  XrV. 
OF  CARRIERS  OF  PASSENGERS. 


314. 
315. 

316. 
317. 

318. 
319. 
3:20. 

321. 

322. 
323. 

324. 
325. 

326. 


327. 


328. 
329. 
330. 
331. 
332. 
333. 

334. 


Who  are  quasi-bailees. 

Carriers  of  passengers. 

I.     Nature  of  the  relation. 

The  parties. 

Common  carriers  of  passen- 
gers. 

Illustrations. 

Passengers. 

(1)     The    offer    to    be- 
come a  passenger. 

-Special  callings. 

Employees. 

Payment      of     fare 

not  necessary. 

T  respassers. 

-(2)     Acceptance  by  the 


carrier. 
What 


amounts  to 
acceptance. 

,?.  Bights  and  duties  result- 
ing from  the  relation. 

Classification. 

A.    By  operation  of  law. 

(1)     Bight  to  compensation. 

Fare. 

Amount  of  fare. 

Tickets. 

Sale  of  tickets. 

Nature  of  ticket. 

Ticket  as  a  con- 
tract. 

Ticket    as    between 

passenger   and    conductor. 


§  335. 
336. 
337. 
338. 
339. 


.340. 
341. 
342. 

343. 


344. 
345. 


346. 
347. 
348. 
349. 
350. 
351. 


Tickets      ambiguous 

on  face. 
Basis     of    carrier 's 


liability. 
('onditions      printe<l 


35: 


on  ticket. 
Stop-overs,     coupon 

tickets. 
Limited  tickets. 

(2)  Bight  to  make  reguUi- 
tions. 

Basis  of  right. 

Must  be  reasonable. 

What  regulations  rea- 
sonable. 

E.iection    of    passengers 

for  breach. 

(3)  Dutii  to  accept  all. 
Common     carriers     of     pas- 
sengers. 

Carrier  may  refuse  to  ac- 
cept. 

(4)  Duty  to  fttrnish  accom- 
modations. 

Equal  accommodations. 
;Means  of  conveyance. 
Roadbeds,  bridges,  etc. 
Latest  improvements. 
Agents  and  sen-ants. 
Stational  facilities. 

(5)  Liability  for  iiijunV* 
to  pa^engcrs. 

Measure  of  diligence. 


133 


§§314-315 


OF  QUASI-BAILEES. 


353. 

As   far    as    human    care 

§367. 

and  foresight  will  go. 

368. 

354. 

Gratuitous  passenger. 

355. 

Contributory   negligence. 

369. 

356. 

What    amounts    to    con- 
tributory negligence. 

357. 

Illustrations. 

358. 

Proximate  cause. 

370. 

359. 

Sleeping  car  companies. 
Not  common  carriers. 

371. 
372. 

360. 

Nature  of  their  undertaking. 

361. 

Their  liability. 
Owners   of  passenger   eleva- 
tors. 

.373. 

362. 

Are   carriers   of   passengers. 
(6)    LiaMlity  for  delay. 

374. 

363. 

Seasonable  diligence. 

(7)      Liability    for    passen- 

ger's baggage. 

375. 

364. 

Insurers  of  baggage. 

365. 

What  is  baggage. 

376. 

366. 

Value  of  baggage. 

Custody  of  passenger. 

Passenger  supposed  to  ac- 
company baggage. 

Delivery  of  baggage. 

B.  Limitation  of  liability 
of  carriers  of  passengers 
by  contract. 

As  to  baggage. 

As  to  the  passenger. 

Gratuitous  passengers. 

(3)  Termination  of  the 
relation. 

How  terminated. 

(1)  Contract  to  carry  fully 
executed. 

When  carrier 's  relation 
ends. 

(2)  Contract  to  carry  left 
incomplete. 

(a)  The  passenger  may 
leave. 

(b)  Carrier  may  eject  pas- 
senger. 


§  314.  Who  are  quasi-bailees. — There  are  several  classes  of 
carriers  whose  callmgs  are  public  or  nearly  so,  but  who  are 
not  carriers  of  goods.  Such  are  carriers  of  passengers,  includ- 
ing sleeping  car  companies  and  owners  of  passenger  elevators. 
carriers  of  news,  such  as  telegraph  and  telephone  companies, 
and  carriers  of  mail.  The  Post  Office  Department  carries  goods 
as  well  as  news,  but  as  it  is  a  department  of  the  government 
and  therefore  cannot  be  sued  it  is  scarcely  to  be  regarded  as  a 
real  bailee  for  hire. 

The  undertakings  of  all  these  carriers,  however,  are  in  their 
nature  so  like  those  of  bailees  for  hire  that  a  consideration  of 
their  legal  status  is  most  naturally  found  in  connection  with 
the  work  on  Bailments  and  Carriers.  With  no  other  branch  of 
commercial  law  have  they  any  close  relations,  but  they  may 
very  properly  be  called  quasi-bailees.  The  passenger  carrier 
as  to  the  baggage  of  the  passenger  is  of  course  a  bailee,  a  com- 
mon carrier  of  goods. 

§  315.  Carriers  of  passengers  are  either  private  or  common 
carriers.  As  the  undertaking  involves  the  safety  of  human  life 
they  are  required  to  exercise  a  degree  of  care  commensurate 
with  such  a  responsibility.     Except  for  this  a  private  carrier 

134 


OF  CARRIERS  OF  PASSENGERS.  v  «5  31G-310 

of  passengers  is  subject  to  no  liabilities  that  call  for  special 
mention  here,  and  the  present  chapter  will  be  devoted  to  com- 
mon carriers  of  passengers,  taking  up  1.  the  natiu-e  of  the  rela- 
tion;  2.  its  rights  and  duties;  nod  3.  its  termination. 

1.    The  Nature  of  the  Relation. 

§  316.  The  parties. — It  is  first  neces.sary  in  questions  arising 
over  the  carrying  of  human  beings  to  know  who  are  common 
carriers  of  passengers  and  who  are  passengers.  The  relati«)ns 
of  passengers  and  non-passengers  to  carriers  rest  on  very  dif- 
ferent principles  of  law.  and  give  rise  to  widely  different  liabil- 
ities. 

§317.  Common  carriers  of  passengers  ar.-  such  as  hold 
themselves  out  for  hire  to  carry  all  persons  indift'erently  who 
apply  for  passage. 

The  distinction  here,  as  in  the  case  of  cari-iers  of  goods,  be- 
tween private  and  public  carriers,  lies  in  the  public  profession, 
the  undertaking  to  carry  all  indifferently  who  apply. 

§  318.    Illustrations. — Contractors  running  construction 

trains,  lumbermen  operating  logging  trains,  railroads  as  to 
freight  trains,  owners  of  conveyances  occasionally  loaned  or 
hired  to  carr}^  persons,  and  sleeping  car  companies,  are  not 
common  carriers  of  passengers.  They  may.  of  course,  by  otter- 
ing as  a  business  to  carry  indiscriminately  iiny  who  apply,  be- 
come common  carriers.  They  are  such  if  they  ha])itually  keep 
coaches  to  carry  by  highway  or  rail,  or  l)oats  to  carry  by  water, 
such  persons  as  present  themselves  for  carriage. 

§  319.  Passengers. — Passengers  are  persons  who  present 
themselves  for  the  purpose  of  being  carried  and  who  are  ac- 
cepted by  the  carrier. 

§  317.  Shoemaker  v.  Kingsbury,  ncr  v.  New  Haven  etc.  Co.,  51  Conn. 
12  Wall.  (U.  S.)  369;  [— ]  Thomp-  143,  50  Am.  R.  12;  [— ]  Hoar  v. 
son-Houston  Electric  Co.  v.  Simon,  ^Nlaine  Central  Railroad  Co.,  70  M«\ 
20  Ore.  60,  25  Pac.  R.  147,  23  Am.  65,  35  Am.  R.  299;  Murch  v.  Con- 
st. R.   86.  '^'orcl    Railroad    Corp.,    29    N.    U.    0, 

§  318.     [— ]        Thompson-Houston  61   Am.   D.   631 ;    Siegrist   v.   Arnot. 

Electric   Co.   v.   Simon,    20   Ore.   60,  86   Mo.  200,  56  Am.  R.  425.     Com- 

25  Pac.  R.  147,  23  Am.  St.  R.  86;  pare  Dunn  v.  Grand  Trunk  Railway 

Houston   &   Texas    Central   Railway  Co.,  58  Me.  187,  4  Am.  R.  267.  and 

Co.   V.   Moore,   49   Tex.   31,   30   Am.  Eaton   v.    Delaware,   Lackawanna    & 

R,  98;   [_]  Blum  V.  Pullman  Palace  Western  Railroa.l  <".>..  •',:  \.  V.  3S2, 

Car  Co.,  1  Flip.  (U.  S.)  500;  Gard-  15  Am.  R.  513. 

135 


§§  320-321  OF  QUASI-BAILEES. 


S 

The  relation  of  passenger  and  carrier  rests  upon  a  contract, 
express  or  implied.    Therefore  two  essentials  are  to  be  noted : 

(1).  There  must  on  one  side  be  an  offer  to  become  a  pas- 
senger. 

(2).  There  must  on  the  other  be  an  acceptance  of  the  offer 
by  the  carrier,  either  expressly  or  impliedly. 

§  320.    (1)     The  offer  to  become  a  passenger  is  usually 

to  be  implied  from  the  circumstances.  The  traveler  must  put 
himself  under  the  control  of  the  carrier  for  the  purpose  of 
being  carried.  This  he  does  if  he  enters  the  carrier's  prem- 
ises, waiting  room,  or  vehicle,  with  the  intention  in  good  faith, 
and  within  a  reasonable  time,  of  becoming  a  passenger;  or  if 
the  carrier  sends  a  vehicle  to  bring  passengers  to  its  station  and 
he  is  riding  in  such  a  vehicle  for  the  purpose  of  becoming  a 
passenger  he  is  ordinarily  regarded  as  a  passenger.  As  soon 
as  he  has  put  himself  in  control  of  the  carrier  in  the  usual  way 
provided  by  the  carrier,  he  has  so  far  offered  himself  as  a 
passenger  as  to  become  such,  unless  there  is  some  act  of  refusal 
on  the  part  of  the  carrier. 

§  321.     Special  callings. — Many  persons,  not  employees 

of  the  carrier,  ride  for  the  purpose  of  performing  some  service 
or  carrying  on  some  business  upon  the  boat  or  train.  Such  are 
mail  clerks,  express  and  news  agents,  and  the  like,  wdio  per- 

§319.     Higley  v.  Gilmer,  3  Mont.  44  Am.  St.  K.  474;   Illinois  Central 

90,  35  Am.  E.  450;    [— ]   Bricker  v.  Eailroad    Co.    v.    O 'Keef  e,    168    111. 

Philadelphia     &     Eeading     Eailroad  115,  48  N.  E.  E.  294,  61  Am.  St.  E. 

Co.,   132  Pa.  St.   1,  18  Atl.  E.  983,  68,   and  extended  note;    Gardner   v. 

19  Am.  St.  E.  585;   Chicago  &  Erie  New  Haven  etc.  Co.,  51  Conn.   143, 

Eailroad  Co.   v.   Field,   7  Ind.  App.  50  Am.  E.  12. 

172,  34  N.  E.  E.  406,  52  Am.  St.  E.  §  321.     Union  Pacific  Eailway  Co. 

444;    Illinois    Central    Eailroad    Co.  v.   Nichols,   8  Kan.   505,   12  Am.  E. 

V.  O'Keefe,  168  111.  115,  48  N.  E.  E.  475;   Gulf  etc.  Eailway  Co.  v.  Wil- 

294,  61  Am.  St.  E.  68,  and  extended  son,  79  Tex.  371,  15  S.  W.  E.  280, 

note.  23  Am.   St.   E.   345;    [— ]    Magoffin 

§  320.     [— ]     Warren  v.  Fitchburg  v.  Missouri  Pacific  Eailway  Co.,  102 

Eailroad  Co.,  8  Allen    (Mass.)    227,  Mo.   540,   15   S.   W.   E.   76,   22   Am. 

85  Am.  D.   700;   Webster  v.   Fitch-  St.  E.  798;  Brewer  v.  New  York  etc. 

burg  Eailroad  Co.,  161  Mass.  298,  37  Eailroad  Co.,  124  N.  Y.  59,  26  N.  E. 

N.  E.  E.  165;  Chicago  &  Erie  Eail-  E.  324,  21  Am.  St.  E.  647;  Cleveland 

road  Co.  v.  Field,  7  Ind.  App.  172,  etc.    Eailway    Co.    v.    Ketcham,    133 

34  N.  E.  E.  406,  52  Am.  St.  E.  444;  Ind.  346,  33  N.  E.  E.  116,   36  Am. 

Hansley  v.  Jamesville  etc.  Eailroad  St.   E.   550 ;    Commonwealth  v.   Ver- 

Co.,  115  N.  C.  602,  20  S.  E.  E.  528,  niont  &  Massachusetts  Eailroad  Co., 

136 


OF  CARRIEKS  OF  PASSENGERS.  §§  322-323 

form  a  service  for  an  employer  who  pays  the  carrier  for  per- 
mission to  carry  on  a  business  and  to  have  his  clerks  or  agents 
transported  on  the  train  or  boat  to  take  charge  thereof.  It 
is  generally  held  that  persons  performing  such  services  and 
traveling  with  the  consent  of  the  carrier  are  not  employees 
of  the  carrier,  but  are  passengers,  or  as  some  cases  put  it.'  are 
to  be  treated  with  the  same  care  as  passengers.  It  is  of  no 
consequence  that  their  fare  is  paid  by  a  third  person,  or  that 
it  is  part  of  the  charge  paid  the  carrier  for  permission  to 
carry  on  the  business,  or  that  no  compensation  is  paid  for  the 
carriage  of  such  persons.  If  they  are  lawfully  on  th<'  train 
and  entitled  to  ride,  they  are  passengers. 

§  322. Employees  of  the  carrier  are  not  passengers  if 

they  are  riding  while  engaged  in  the  service  for  which  they 
were  employed,  or  are  traveling  free  of  charge  to  and  from 
their  work.  But  an  employee  may  be  a  passenger,  and  he  is 
generally  regarded  as  such,  if  he  travels  when  not  about  his 
duties  to  the  carrier,  or  if  before  and  after  his  hours  of  em- 
ployment for  his  own  private  interest  or  pleasure  he  rides 
to  and  from  his  work  on  a  ticket  that  forms  part  of  the  con- 
sideration by  which  he  was  induced  to  enter  the  employment 
of  the  carrier.  To  its  servants  the  carrier  owes  the  duty  to 
use  due  diligence  in  selecting  fellow  servants,  but  does  not 
guarantee  against  the  negligence  of  such  fellow  servants  wln'ii 
properly  selected. 

§  323.    Payment  of  fare  is  not  necessary  to  make  one  a 

108  Mass.  7,  11  Am.  R.  301;   Sey-  Valley  Railroad  Co.,  59  Pa.  St.  239, 

bolt  V.  New  York  etc.  Railroad  Co.,  98   Am.   D.   336;    [— ]    "Williams   v. 

95  N.  Y.  562,  47  Am.  R.  75,  Oregon  Short  Line  Railroad  Co.,  18 

Contra  as  to  express  messengers:  Utah,  210,  54  Pae.  R.  991,  72  Am. 

Baltimore  &  Ohio   etc.  Railway   Co.  St.   R.   777;    lonnone   v.   New  York 

V.  Voigt,   176   TJ.   S.   498;    Peterson  etc.   Railroad  Co.,   21  R.   I.  452,  44 

V.  Chicago  &  Northwestern  Railway  Atl.   R.    592,    79    Am.    St.    R.    812;- 

Co.,  —  Wis.  — ,  96  N,  W,  R.  532.  [— ]  Steamboat  New  World  v.  King, 

§322.     Vick  V.  New  York  Central  16  How.    (U.  S.)    469;    McNulty   v. 

Railroad  Co.,  95  N,  Y.  267,  47  Am.  Pennsylvania  Railroad  Co.,   182  Pa, 

R.  36;  [_]  Doyle  v.  Fitchburg  Rail-  St.  479,  38  Atl.  R.  524,  61  Am.  St. 

road  Co.,  162  Mass.  66,  37  N.  E.  R.  R.  721 ;   [— ]  Hoar  v.  Maine  Central 

770,  44  Am.  St.  R.  335,  166    Mass.  Railroad  Co.,  70  Me.  65.  35  Am.  R. 

492,   55  Am.   St.  R.  417;   Dickinson  299. 

V.  West  End  Street  Railway  Co.,  177  §  323.  [— ]  Philadelphia  i-  Read- 
Mass.  365,  59  N.  E.  R.  60,  83  Am.  ing  Railroad  Co.  v.  Derby.  14  How. 
St,  R.  284;   O'Donnell  v.  Allegheny  (U.  S.)  468;   |  — 1  Railroad  v.  Lock- 

137 


S§  324-325  or  quasi-batlees. 

passenyor.  The  carrier  may  refuse  to  carry  without  compen- 
sation, but  if  that  right  be  waived  the  only  inquiry  is  whether 
the  person  was  lawfully  on  the  train.  If  the  carrier  accepts 
the  duty  of  carrying  a  human  being  that  duty  can  not  be 
affected  by  the  payment  or  non-payment  of  fare.  Though  the 
relation  of  carrier  and  passenger  rests  upon  contract,  the  duty 
of  the  carrier  toward  human  life  does  not  rest  upon  contract, 
but  is  imposed  by  law. 

§  324.     Trespassers.— But  toAvard  a  mere  trespasser  the 

carrier  owes  no  duty  except  to  refrain  from  any  wilful  injury. 
One  who  boards  a  train  without  the  knowledge  or  consent  of 
the  carrier,  intending  to  steal  a  ride  or  in  any  manner  to  de- 
fraud the  carrier  of  full  compensation,  is  not  a  passenger,  but 
a  trespasser.  And  if  by  collusion  with  trainmen,  or  even  with 
the  conductor,  he  secures  permission  to  ride  free,  or  for  less 
than  the  full  fare,  he  is  no  passenger.  Wrongful  collusion 
with  an  agent  can  give  no  right  against  his  principal. 

§  325.  (2)  Acceptance  by  the  carrier.— As  the  relation  of 
carrier  and  passenger  can  arise  only  from  a  contract,  it  fol- 
lows that  one  can  not  become  a  passenger  until  he  is  accepted 
by  the  carrier.     Acceptance  is  usually  implied  from  the  act 

wood,  17  Wall.  (U.  S.)  357,  10  Am.  W.  R.  809,  22  Am.  St.  R.  728;  Hig- 

E.  366 ;  Ohio  &  Mississippi  Railroad  ley  v.  Gilmer,  3  Mont.  90,  35  Am.  R. 

Co.  V.  MuhUng,  30  111.  9,  81  Am.  D.  450;     Toledo    etc.    Railway    Co.    v. 

336;   [— ]  Williams  v.  Oregon  Short  Beggs,   85   111.   80,   28   Am.   R.   613; 

Line  Railroad  Co.,  18  Utah  210,  54  Louisville  etc.  Railway  Co.  v.  Thomp- 

Pac.  R.  991,  72  Am.  St.  R.  777 ;  Illi-  son,    107   Ind.  442,   8   N.   E.   R.    18, 

nois  Central  Railroad  Co.  v.  Beebe,  57   Am.   R.    120;    Way  v.    Chicago, 

174  111.   13,   50  N.   E.  R.   1019,   66'  Rock  Island  &  Pacific  Railroad  Co.' 

Am.  St.  R.  253 ;  [— ]  Hoar  v.  Maine  64  Iowa  48,  19  N.  W.  R.  828,  52  Am. 

Central  Railroad  Co.,  70  Me.  65,  35  R.    431;    Padgitt   v.   Moll,    159    Mo. 

^m.  R.  299 ;  Russell  v.  Pittsburg  etc.  143,  60  S.  W.  R.  121,  81  Am.  St.  R. 

Railway  Co.,  157  Ind.  305,  61  N.  E.  347;    Chicago   &   Erie   Railroad   Co. 

R.  678,   87  Am.   St.  R.   214;   Union  v.  Field,  7  Ind.  App.  172,  34  N.  E. 

Pacific    Railway    Co.    v.    Nichols,    8  R.  406,  52  Am.  St.  R.  444;   Illinois 

Kan.   505,   12  Am.  R.  475;    Lemon  Central    Railroad    Co.    v.    O'Keefe, 

V.  Chanslor,  68  Mo.  340,  30  Am.  R.  168   111.    115,   48   N.   E.   R,   294,   61 

799.     Compare  Higley  v.  Gilmer,   3  Am.  St.  R.  68,  note. 

Mont.  90,  35  Am.  R.  450.  §  325.     [— ]     Bricker  v.  Philadel- 

§  324.      [— ]     Bricker  v.  Philadel-  phia   &   Reading   Railroad   Co.,    132 

phia   &   Reading   Railroad   Co.,    132  Pa.   St.   1,   18   Atl.   R.   983,   19   Am. 

Pa.   St.   1,   18  Atl.   R.   983,   19  Am.  St.  R.  585;  Higley  v.  Gilmer,  3  Mont. 

St.  R.  585;  McVeety  v.  St.  Paul  etc.  90,  35  Am.  R.  450;  Chicago  &  Erie 

Railway  Co.,   45   Minn.   268,  47   N.  Railroad  Co.  v.  Field,  7  Ind.  App. 

138 


OF  CAERIERS  OF  PASSENGBBS.  §§  326-327 

of  the  passenger  in  putting  himself  in  the  control  of  the  car- 
rier in  the  manner  usually  provided  by  the  carrier  for  its  pas- 
sengers.  The  carrier  rarely  expressly  accepts  the  passenger 
as  such  until  after  the  carriage  has  begun,  but  the  relation 
dates  from  the  implied  acceptance  when  the  passenger  proi>- 
erly  presents  himself  for  carriage. 

^  326.     What  amounts  to  acceptance.— The  carrier  is  in 

general  presumed  to  have  accepted  as  passengers  all  who  offer 
themselves  in  the  usual  Avay  for  carriage,  whether  the  carrier 
has  knowledge  of  such  offer  or  not.  Entering  a  station  with 
the  intention  of  purchasing  a  ticket  for  immediate  transporta- 
tion, or  boarding  a  train  with  or  without  a  ticket  with  the  in- 
tention of  paying  for  the  ride  when  called  upon,  ordinarily 
makes  one  a  passenger,  and  so  does  signaling  a  bus  to  stop  for 
a  pedestrian  if  the  driver  heeds  the  signal  and  stops  the  bus. 
But  running  to  catch  a  train,  boarding  a  train  not  used  for 
carrying  passengers,  or  a  passenger  train  in  a  part  of  the  train 
not  used  for  passengers,  or  riding  in  the  cab  of  the  engine 
with  the  consent  of  the  engineer,  are  not  acts  from  which  the 
carrier's  acceptance  of  the  person  as  a  passenger  will  be  pre- 
sumed. 

2.    Rights  and  Duties  Resulting  from  the  Rel.\tion. 

§  327.     Classification. — The  rights  and  liabilities  of  the  pas- 
senger carrier  are  fixed. 

A.  By  operation  of  law;  or 

B.  By  contract. 

172,  34  N.  E.  E.  406,  52  Am.  St.  E.  E.  528,  44  Am.  St.  R.  474;   Merrill 

444;    [ — ]    Hoar    v.    Maine   Central  v.   Eastern  Eailroad  Co.,  139  Mass. 

Eailroad  Co.,  70  Me.  65,  35  Am.  E.  238,  1  N  .E.  E.  548,  52  Am.  R.  705; 

299;    Illinois    Central    Eailroad    Co.  [—]  Briiker  v.  Philadelphia  &  Bcad- 

V.  O'Keefe,  168  111.   115,  48  N.   E.  ing  Eailroad  Co.,  132  Pa.  St.   1,  18 

E.   294,  61   Am.  St.  E.  68.  Atl.  E.  983,  19  Am.  St.  R.  585;  Illi- 

§  326.      [ — ]     Brieu  v.  Bennett,  8  nois  Central  Eailroad  Co.  v.  O  'Keefc. 

Car.  &  P.  724,  34  E.  C.  L.  984;  Car-  168  111.  115,  48  N.  E.  R.  294,  61  Am. 

penter  v.  Boston  &  Albany  Eailroad  St.  R.   68;   Gardner  v.   New   Haven 

Co.,  97  N.  Y.  494,  49  Am.  R.  540;  etc.  Co.,  51  Conn.  143,  .")0  Am.  R.  12; 

Union  Pacific  Railway  Co.  v.  Nichols,  Eaton   v.   Delaware,   Lackawanna   & 

8     Kan.     505,     12     Am.     R.     475;  Western  Eailroad  Co.,  57  N.  Y.  382, 

[_]    Warren  v.   Fitchburg  Eailway  15   Am.   E.   513;    Udell   v.   Citizens' 

Co.,  8  Allen  (Mass.)  227,  85  Am.  D.  Street   Eailroad   Co.,    152    Ind.   507, 

700;  Hansley  v.  Jamesville  etc.  Rail-  52  X.  E.  E.  790.  71  Am.  St.  R.  336. 
road  Co.,  115  N.  C.  602,  20  S.  E. 

139 


§§  328-330  OF  QUASI-BAILEES. 

A.  By  operation  of  law  the  carrier  of  passengers  has  the 
following  rights  and  duties : 

(1)  Right  to  compensation. 

(2.  Right  to  make  reasonable  regulations. 

(3)  Duty  to  accept  all  as  passengers. 

(4)  Duty  to  furnish  accommodations. 

(5)  Liability  for  injury  to  the  passenger. 

(6)  Liability  for  delay  in  transportation. 

(7)  Liability  for  passenger's  baggage. 

(1)     Bight  to  Compensation. 

§  328.  Fare. — Like  every  carrier  the  common  carrier  of 
passengers  has  a  right  to  compensation  for  his  services,  and 
may  demand  his  payment  in  advance.  It  is  usual  to  do  this 
by  requiring  the  purchase  of  a  ticket  before  entering  the  cars 
or  other  vehicle.  The  rules  already  stated  as  to  compensa- 
tion of  the  common  carrier  of  goods  apply  to  the  compensation 
of  the  common  carrier  of  passengers,  except  that  the  latter 
is  equally  a  carrier  of  passengers  who  pay  and  of  those  who 
ride  gratuitously  with  the  carrier's  consent. 

§  329.  Amount  of  fare. — In  the  case  of  the  great  cor- 
porations engaged  in  carrying  passengers  by  land,  the  fare  is 
often  fixed  by  charter  or  statute.  When  not  so  regulated  the 
customary  rate,  or  in  the  absence  of  usage,  a  reasonable 
amount  may  be  charged.  The  charge  must  be  uniform  to  all 
persons  of  the  same  class  riding  under  the  same  conditions. 

§  330.     Tickets  purchased  by  the  passenger  showing  the 

route  and  train  for  which  passage  has  been  paid  are  in  uni- 
versal use.  Such  tickets  are  evidence  of  the  passenger's  right 
to  ride,  and  they  are  often  used  as  a  contract  containing 
printed  stipulations  as  to  the  special  terms  under  which  the 
carriage  is  undertaken,  both  of  the  passenger  and  of  his  bag- 
gage.   (See  Sec.  333.) 

§  328.     See   the    cases    under   sec.  D.  347 ;  Lynch  v.  Metropolitan  Ele- 

323;    Hutchinson   on    Carriers,    sec.  vated  Eailway  Co.,  90  N.  Y.  77,  43 

565 ;  Barrett  v.  Market  Street  Kail-  Am.  E.  141 ;  Pullman  Palace  Car  Co. 

way  Co.,  81  Cal.  296,  22  Pac.  E.  859,  v.  Eeed,  75  111.  125,  20  Am.  E.  232. 
15   Am.    St.    E.    61;    [— ]    Standish  §329.     Ante,  see.   202-203;    Spof- 

V.  Narragansett  Steamship  Co.,  Ill  ford  y.  Eailroad  Co.,  128  Mass.  326; 

Mass.       512,      15      Am.      E.      66;  Wellman  v.   Eailway   Co.,   83   Mich. 

[— ]    O'Brien   v.   Boston   etc.   Eail-  592,  47  N.  W.  E.  489;   Hutchinson 

road,  15  Gray   (Mass.)   20,  77  Am.  on  Carriers,  sec.  567a. 

140 


OF  CARRIERS  OF  PASSENGERS. 


§§  331-332 


i;  331.     Sale  of  tickets.— As  already  stated,  the  earner 

may  reciuire  the  purchase  of  a  ticket  as  a  prerequisite  to  the 
right  to  ride.  Passengers  who  fail  to  comply  may  be  ejected 
from  the  train,  or  required  to  pay  a  higher  fare  on  the  train, 
provided  this  higher  fare  be  not  in  excess  of  the  amount  the 
carrier  is  permitted  to  charge. 

But  the  carrier  must  afford  passengers  rea.sonable  opi>or- 
tunitios  to  procure  tickets.  The  ticket  office  must  be  open  for 
a  reasonable  time  before  the  train  starts,  or  at  least  before 
the  schedule  time  for  its  departure,  and  tickets  mu.st  be  sold 
indifferently  to  all  wlio  apply.  If  the  fault  of  the  carri.-r 
prevents  the  passenger  from  procuring  a  ticket  he  is  entitled 
to  ride  by  paying  the  lower  fare  on  the  train,  and  if  he  is 
ejected  for  a  refusal  to  pay  the  higher  charge  the  carrier  Is 
liable  for  the  damages  caused  thereby. 

§  332.     Nature  of  ticket.— The  ticket  is  evidence  that 

the  passenger  has  paid  his  fare,  and  must  therefore  be  pro- 
duced whenever  called  for  by  the  conductor.  One  who  re- 
fuses to  produce  his  ticket,  or  who  has  lost  or  mislaid  it,  can 


§  331.  McGowen  v.  Morgan 's 
Railroad  &  Steamship  Co.,  41  La. 
732,  6  S.  R.  606,  17  Am.  St.  R. 
415;  [ — ]  Zagelmeyer  v.  Cincinnati, 
Saginaw  &  Mackinaw  Railroad 
Co.,  102  Mich.  214,  60  N.  W.  R.  436, 
47  Am.  St.  R.  514;  [— ]  O'Rourke 
V.  Citizens'  Street  Railway  Co.,  103 
Tenn.  124,  52  S.  W.  R.  872,  76  Am. 
St.  R.  639 ;  Poole  v.  Northern  Pacific 
Railroad  Co.,  16  Ore.  261,  19  Pac. 
R.  107,  8  Am.  St.  R.  289;  Reese  v. 
Pennsylvania  Railroad  Co.,  131  Pa. 
St.  422,  19  Atl.  R.  72,  17  Am.  St. 
R.  818;  Du  Laurans  v.  St.  Paul  & 
Pacific  Railroad  Co.,  15  Minn.  49, 
2  Am.  R.  102;  Chicago,  Burlington 
&  Quincy  Railroad  Co.  v.  Parks,  18 
111.  460,  68  Am.  D.  562 ;  [— ]  Forsee 
V.  Alabama  Great  Southern  Railroad 
Co.,  63  Miss.  66,  56  Am.  R.  801; 
Everett  v.  Chicago,  Rock  Island  & 
Pacific  Railroad  Co.,  69  Iowa  15, 
28  N.  W.  R.  410,  58  Am.  R.  207; 
St.  Louis  etc.  Railroad  Co.  v.  South, 
43  111.  176,  92  Am.  D.  103;  Jefifcr- 


sonvillc  Railroad  Co.  v.  Rogers,  28 
hid.  1,  92  Am.  D.  276;  Swan  v. 
Manchester  etc.  Railroad  Co..  132 
.Mass.  116,  42  Am.  R.  432. 

§  332.  I— ]  Ranchau  v.  Rutland 
Railroad  Co.,  71  Vt.  142,  76  Am.  St. 
R.  761 ;  Mahouey  v.  Detroit  Street 
Railway  Co.,  93  Mich.  612,  53  X.  W. 
R.  793,  32  Am.  St.  R.  528 ;  Jerome  v. 
Smith,  48  Vt.  230,  21  Am.  R.  125; 
Townsend  v.  New  York  Central  Rail- 
road Co.,  56  N.  Y.  295,  15  Am.  R. 
419;  [ — ]  Standish  v.  Xarragansett 
Steamship  Co.,  Ill  Maas.  512,  15 
Am.  R.  66;  Pullman  Palace  Car  Co. 
V.  Reed,  75  111.  125,  20  Am.  R.  232; 
Van  Kirk  v.  Pennsylvania  Railroad 
Co.,  76  Pa.  St.  66,  18  Am.  R.  404. 
But  see  also  Maples  v.  New  York 
&  New  Haven  Railroad  Co.,  38  Conn. 
557,  9  Am.  R.  434;  Illinois  Central 
Railroad  Co.  v.  Whittemore,  43  III. 
421,  92  Am.  D.  138;  JeflFersonvillc 
Railroad  Co.  v.  Rogers,  38  Ind.  116, 
10   Am.    R.    103. 


141 


§  §  333-334  OF  QUASI-BAILEES. 

be  required  to  pay  full  fare  on  the  train  on  penalty  of  ejection 
for  refusal  so  to  do.  The  conductor  may  require  the  passenger 
to  surrender  his  ticket,  but  not  without  giving  him  instead  a 
check  or  other  evidence  of  his  right  to  ride. 

§  333.     Ticket  as  a  contract. — The  ordinary  passenger 

ticket  is  not  a  contract,  but  mere  evidence  of  a  contract,  a 
receipt  or  token  given  by  the  carrier  to  show  its  trainmen  for 
what  right  the  passenger  has  paid.  In  this  it  differs  from  a 
bill  of  lading  which  is  ordinarily  both  a  receipt  and  a  contract. 
If  therefore  the  carrier  embodies  in  the  ticket  elements  of  the 
contract  of  carriage  the  purchaser  does  not  by  mere  accept- 
ance of  the  ticket  assent  to  terms  printed  thereon,  in  the 
absence  of  actual  knowledge  of  them. 

His  acquiescence  may  be  assumed  when  he  knows  he  is 
buying  a  ticket  at  reduced  rates  and  the  terms  are  plainly 
printed  on  the  ticket,  or  when  he  signs  stipulations  so  printed 
without  taking  the  trouble  to  read  them,  but  in  any  case  the 
contlitions  will  not  be  binding  imless  they  are  reasonable. 

It  is  the  contract,  not  the  ticket,  that  governs  the  right  to 
transportation,  and  it  is  seldom,  if  ever,  that  the  ticket  em- 
bodies all  the  elements  of  the  contract.  But  when  the  cir- 
cumstances are  such  that  the  passenger  must  be  understood 
to  have  assented  to  conditions  on  the  ticket  they  become  part 
of  the  contract  of  carriage.  If  the  ticket  does  not  express 
the  full  contract,  parol  evidence  is  admissible  to  supply  missing 
terms. 

§  334.    As  between  the  passenger  and  the  conductor  the 

§333.     [— ]     Eanchau  V.  Eutland  E.    E.    -ii'4,    51    Am.    St.    E.    206; 

Eailroad  Co.,  71  Vt.  142,  43  Atl.  E.  [ — ]    Pennsylvania    Eailroad    Co.   v, 

11,  76  Am.  St.  E.  761;   [— ]  Quimbv  Parry,  55  X.  J.  L.  551,  27  Atl.  E. 

V.  A'anderbilt,  17  N.  Y.  306,  72  Am.  914,  39  Am.  St.  E.  654;  Walker  v. 

]).  469;    Fonseea  v.  Cunard   Steam-  Price,    62   Kan.    327,   62   Pae.    1001, 

ship  Co.,  153  Mass.  553,  27  N.  E.  E.  84    Am.    St.    E.    392;    Burnham    v. 

665,    25   Am.   St.   E.    660;    Boyd   v.  Grand   Trunk   Eailway   Co.,   63   Me. 

Spencer,   103  Ga.   828,   30   S.   E.   E.  298.    IS    Am.    E.    220;    Callaway   v. 

841,  68  Am.  St.  E.  146;    [— ]   Kent  Mellett,  15  Ind.  App.  366,  44  N.  E. 

V.    Baltimore   &   Ohio   Eailroad   Co.,  E.      198,      57     Am.      St.     E.      238; 

45   Oliio  St.   284.   12   X.   E.  E.   798,  [— ]    O'Eourke    v.    Citizens'    Street 

4  Am.  St.  E.  539;  Kansas  City  etc.  Eailway  Co..   103   Tenn.   124,   52   S. 

Eailroad  Co.  v.  Eodebaugh,  38  Kan.  W.  E.  872,  76  Am.  St.  E.  639. 

45,   15   Pac.   E.   899,   5   Am.   St.   E.  §  334.     [— ]     Frederick     v.     IMar- 

715;    Louisville   etc.  Eailway   Co.   v.  quette    etc.    Eailroad   Co.,    37    Mich. 

Xicholai,    4    In<l.    App.    119,    30    X'.  342,   26   Am.  E.  531;    Bradshaw  v. 

142 


0 1^  (•  A  R  H I ERS  OF  PASSENGERS.  §  §  335.336 

ticket  is  conclusive  of  the  passenger's  right  to  ride.  On  a 
ticket  reading  from  A  to  B  one  may  nut  ride  from  B  to  \ 
nor  from  A  to  C  beyond  B.  As  to  that  conductor  it  does  not 
matter  that  the  mistake  in  the  ticket  was  the  fault  of  the 
ticket  agent  who  sold  it.  The  conductor  must  be  guided  by 
the  ticket  or  the  carrier  would  be  at  the  mercy  of  every  fraud'- 
ulent  representation  of  a  passenger.  The  passenger  with  a 
wrong  ticket  should  pay  his  fare  again,  taking  a  receipt.  He 
may  then  recover  from  the  carrier  all  the  <lamage  proximately 
caused  by  the  fault  of  the  ticket  agent. 

§  335.    Tickets  ambiguous  on  their  face  have  led  the 

courts  in  some  cases  to  relax  the  alx.vc  lulc.  with  a  resulting 
uncertainty  that  seems  unfortunate  and  not  always  in  accord 
with  reason  and  the  conditions  under  which  a  con<luctor  acts 
in  taking  tickets.  Thus.  Avhere  a  pasenger  through  the  fault 
of  the  agent  or  carrier  is  unable  to  procure  a  proper  ticket. 
or  has  been  given  a  ticket  which  does  not  show  upon  its  face 
that  it  is  defective,  it  has  been  held  that  the  conductor  must 
accept  the  passenger's  statement  until  he  knows  the  contrary 
to  be  true.  Under  such  a  rule  it  is  difficult  to  see  how  the 
carrier  can  be  protected  against  fraudulent  representations. 
The  cases  on  this  question  are  in  conflict. 

§336. Basis  of  carrier's  liability. — It  is  pussibl.'  that 

the  conflicting  rules  result  from  a  failure  to  distinguish  be- 
tween the  right  of  the  conductor  and  the  liability  of  the  car- 
rier.   By  the  weight  of  reason,  and  it  is  believed  of  authority 

South     Boston     Railroad     Co.,     135  Mich.  631,  31  X.  W.  R.  544,  8  Am. 

Mass.  407,  46  Am.  R.  481;   McKay  St.  R.  859.     (Compare  id.  53  Mii-h. 

V.   Ohio   River  Railroad   Co.,   34   W.  118,   IS   X.   W.   R.   580.)      [— ]    O'- 

Va.  65,  11  S.  E.  R.  737,  26  Am.  St.  Rourke   v.   Citizens'   Street   Railway 

E.  913;   Kiley  v.  Chicago  City  Rail-  Co.,  103  Tenn.  124,  52  S.  W.  R.  872, 

way  Co.,   189  111.   384,  59  X.   E.   R.  76  Am.  St.  R.  639;  Kansa.s  City  eto. 

794,   82  Am.  St.   R.  460;   Louisville  Railroad  Co.  v.  Riley,  68  Miss.  765, 

&  Nashville  Railroad  Co.  v.  Gaines,  9   S.    R.   443,    24   Am.   St.    R.    309; 

99  Ky.  411,  36  S.  W.  R.  174,  59  Am.  Head    v.    Georgia    Pacific    Railway 

St.  R.  465;   Callaway  v.  Mellett,   15  Co.,  79  Ga.  358.  7  S.  E.  R.  217,   11 

Ind.  App.  366,  44  X.  E.  R.   198,  57  Am.  St.  R.  434;    Murdock  v.  Boston 

Am.  St.  R.  238;  Keeley  v.  Boston  &  &   Albany    Railroad   Co.,    137    Mhs.s. 

Maine  Railroad  Co.,  67  Me.  163,  24  u93.  50  Am.  R.  3u7. 
Am.   R.    19;    Hot   Springs   Railroad  §336.     Aj)ideby   v.   St.   Paul  City 

Co.  V.  Deloney,   65  Ark.   177,  45   S.  Railway   Co.,   54    Minn.    169.   55    X. 

W.  E.  351,  67  Am.  St.  R.  913.  W.    R.    1117,    40    Am.    St.    R.    308; 

§  335.     [ — ]     HufFord     v.     Grand  Louisville  &  XashvilJo.  Railroad  Co. 

Rapids   &   Indiana   Railroad  Co.,   64  v.  Gaines,  99  Ky.  411.  36  S.  \V.  R. 

143 


§§  337-338  ^'''  QUASr-BAiLEES. 

also,  the  conductor  must  be  guided  by  the  ticket,  and  is  guilty 
of  no  wrong  in  ejecting  a  passenger  for  failure  to  present  a 
proper  ticket  and  refusal  to  pay  full  fare. 

But  the  carrier  is  equally  liable  for  the  acts  of  the  conductor 
and  of  the  ticket  agent.  If,  therefore,  through  the  negligence 
or  -wrong  of  such  agent  the  passenger  is  not  furnished  with 
a  proper  ticket  the  carrier  is  liable  for  the  natural  and  proxi- 
mate conseciuences.  The  passenger  may  pay  his  fare  again 
and  recover  back  the  extra  amount  so  paid;  but  he  is  not 
l)()und  to  do  so,  and  if  he  refuses  and  is  ejected  from  the  train 
the  carrier  is  liable  not  only  for  the  amount  of  the  fare,  but 
for  other  losses  proximately  caused  by  the  negligence  of  the 
agent,  but  not,  it  is  believed,  for  injuries  caused  by  resisting 
ejection  from  the  train,  unless  the  passenger  was  wantonly  and 
maliciously  injured  by  the  trainmen.  The  passenger  recovers, 
but  his  recovery  is  based  on  the  wrong  of  the  ticket  agent 
and  not  on  that  of  the  conductor.  This  distinction  in  some 
cases  has  an  important  bearing  on  the  form  of  the  action  and 
the  amount  of  the  damages. 

§  337.  Conditions  printed  on  the  ticket  bind  the  pas- 
senger if  they  are  reasonable  and  not  contrary  to  public  policy. 
But  the  ticket  is  a  mere  token  that  the  fare  is  paid  and  that 
the  passenger  has  a  right  to  be  carried  to  the  destination  indi- 
cated in  the  ticket  according  to  the  reasonable  regulations 
of  the  company.  Both  the  regulations  on  the  ticket  and  oth.er 
regulations  of  the  carrier,  at  least  so  far  as  they  are  presumed 
to  be  known,  are  part  of  the  contract  of  carriage,  and  the 
passenger  must  conform  to  them. 

^  338.     Stop-overs,    coupon    tickets. — Presumptively    a 

ticket  is  evidence  of  a  right  to  a  continuous  passage  to  the 

174,   59   Am.   St.   E.   465 ;    Iviley   v.  road  Co.,  34  Md.  532,  6  Am.  K.  345. 

Chicago   City   Kailway   Co.,    189   III.  §  338.     [— ]     Pennsylvania     Eail- 

384,  59  N.  E.  K.  794,  82  Am.  St.  E,  road  Co.  v.  Parry,  55  N.  J.  L.  551, 

460;     I—]     O'Eourke    v.     Citizens'  27  Atl.  E.  914,  39  Am.  St.  E.  654; 

Street  Eailway  Co.,   103  Tenn.   124,  Cheney  v.  Boston  &  Maine  Eailroad 

52  S.  W.  E.  872,  76  Am.  St.  E.  639;  Co.,  11  Mete.    (Mass.)   121,  45  Am. 

Atchison,  Topeka  &  Santa  Fe  Eail-  D.  190;   Spencer  v.  Lovejoy,  96  Ga. 

road  Co.  v.  Gauts,  38  Kan.  608,   17  657,  23  S.  E.  E.  836,  51  Am.  St.  E. 

Pac.  E.  54,  5  Am.  St.  E.  780.  152;    [ — ]    Auerbach   v.    New   York 

§  337.     [— ]     Pennsylvania     Eail-  Central  Eailroad  Co.,  89  N.  Y.  281, 

road  Co.  v.  Parry,  55  N.  J.  L.  551,  42  Am.  E.  290 ;  McClure  v.  Philadel- 

27  Atl.  E.  914,  39  Am.  St.  E.  654;  phia  etc.  Eailroad  Co.,  34  Md.  532, 

McClure   v,    Philadelphia    etc.    Eail-  6  Am.  E.  345;   State  v.  Overton,  4 

144 


OF  CAEKIERS  OF  PASSENGERS. 


§339 


destination  therein  named,  and  the  passeufrer  has  uo  right  to 
])reak  the  journey  by  stopping  off  unless  the  carrier  specially 
grants  stop-over  privileges.  The  contract  is  entire,  and  neither 
party  can  be  required  to  perform  it  in  fragments.  Where, 
however,  the  passage  is  over  several  lines,  or  several  branches 
of  the  same  line,  and  a  coupon  ticket  is  given,  <'Heh  coupon  is  a 
sort  of  separate  contract  over  that  division  of  the  route,  and 
the  passenger  may  leave  the  train  at  junction  points  and  re- 
sume his  journey  by  a  later  train. 

§  339.     Limited  tickets. — There  is  nothuig  unreasonable 

in  limiting  a  ticket  to  be  "good  only  on  date  of  sale,"  "good 
only  two  days  from  date  stamped  on  back,"  "not  good  on 
limited  trains."  If  one  asks  for  an  inferior  ticket  at  a  reduced 
rate  he  is  presumed  to  accept  the  conditions  printed  thereon 
as  part  of  the  contract  of  carriage.  If,  however,  a  first  class 
unlimited  ticket  is  paid  for  the  passenger  is  bound  only  by 
conditions  of  which  he  had  notice,  and  if  a  second  class  ticket 
is  issued  to  him  the  carrier  is  liable  if  he  is  denied  the  full 
advantages  of  a  first  class  ticket.  It  has  been  held  that  a  time 
limitation  is  not  matter  of  contract,  but  is  a  mere  regulation 
of  which  the  passenger  must  take  notice. 

Tickets  limited  as  to  time  of  use  are  not  good  after  the 
expiration  of  such  time.  The  journey  must  be  begun,  though 
not  necessarily  completed,  before  the  expiration  of  such  time 
limit.  In  the  case  of  coupon  tickets  the  journey  over  the  por- 
tion of  the  route  covered  by  the  last  coupon  nuist  have  been 
entered  upon,  but  not  necessarily  completed,  within  the  limit. 
Zab.  (N.  J.)  435,  61  Am.  D.  671;^  Kaihvay  Co.,  63  Me.  J98,  18  Am.  R. 
Stone  V.  Chicago  &  Northwestern"  220;  Louisville  &  Nashville  Rail- 
Railway  Co.,  47  Iowa  82,  29  Am.  E.  road  Co.  v.  Gaines,  99  Ky.  411,  36 
458.  S.   W.  R.   174,  59  Am.   St.  R.  465; 

I  339,  [_]  Boston  &  Lowell  [— ]  Ranchau  v.  Rutland  Railroad 
Railroad  Co.  v.  Proctor,  1  Allen  Co.,  71  Vt.  142,  43  Atl.  R.  11,  76 
(Mass.)  267,  79  Am.  D.  729;  Hef-  Am.  St.  R.  761.  Compare  Coburn  v. 
fron  V.  Detroit  City  Railway  Co.,  92  Morgan's  Railroad  Co..  105  La. 
Mich.  406,  52  N.  W.  E.  802,  31  Am.  398,  29  S.  R.  882.  S3  Am.  St.  R. 
St.  R.  601;  Elmore  v.  Sands,  54  N.  242,  with  Boyd  v.  Spencer.  103  Ga. 
Y.  512,  13  Am.  R.  617;  McClure  v.  S28,  30  S.  E.  R.  841.  68  Am.  St.  R. 
Philadelphia  etc.  Railroad  Co.,  34  146;  [— ]  Auerbaeli  v.  New  York 
Md.  532,  6  Am.  R.  345;  Keeley  v.  Central  Railroad  Co.,  89  N.  Y.  281, 
Boston  &  Maine  Railroad  Co.,  67  42  Am.  R.  290;  Clevclaud  etc.  Rail- 
Me.  163,  24  Am.  R.  19;  Walker  v.  way  Co.  v.  Kinsley.  27  Ind.  App. 
Price,  62  Kan.  327,  62  Pac.  R.  1001,  135,  60  N.  K.  R.  169.  '<7  Am.  St.  R. 
84  Am.  St.  E.  392,  and  extended  •-45. 
note;     Bnniham     v.     Grand     Trunk 

10  145 


§§  340-341  OF   QLTASI -BAILEES. 


(2)     RigJit  lo  Make  ReguUitions. 

v;  340.  Basis  of  the  right. — It  is  not  only  the  right,  but  also 
the  duty,  of  passenger  carriers  to  make  and  enforce  reasonable 
rules  and  regulations  for  the  safety  and  comfort  of  their  pas- 
sengers. Particularly  in  the  case  of  carriers  using  steam  as 
a  motive  power,  public  convenience  and  safety  require  such 
rules  as  to  the  manner  of  doing  their  business  as  carriers  and 
as  to  the  conduct  of  their  passengers  as  shall  ensure  a  service 
that  is  swift,  regular  and  safe. 

For  the  enforcement  of  such  rules  and  regulations  the  law 
gives  the  carrier  ample  authority.  Derangement  in  the  run- 
ning of  trains  is  hazardous  to  property  and  life,  and  a  pas- 
senger whose  conduct  causes  such  derangement  forfeits  his 
right  to  ride.  Every  passenger  therefore  impliedly  agrees 
to  be  bound  by  the  reasonable  regulations  of  the  carrier. 

^'  §  341.  Must  be  reasonable. — While  these  reasonable  regu- 
lations are  part  of  the  contract,  expressed  or  implied,  for  the 
carriage,  and  while  the  carrier  may,  if  necessary,  resort  to 
force  to  compel  obedience  to  them,  yet  he  assumes  the  risk  of 
being  liable  in  damages  to  the  passenger  if  he  resorts  to  ex- 
treme measures  to  enforce  regulations  that  are  unreasonable 
and  unnecessary.  The  reasonable  regulations  may  apply  to  the 
station  or  to  any  part  of  the  journey,  to  the  passenger  on  or 
off  the  train.  But  it  must  be  their  purpose  to  facilitate  the 
service  and  to  secure  the  just  rights  of  the  parties,  and  not 

§  340.     Hibbard   v.   Erie  Eailroad  pud  extended  note;  Day  v.  Owen,  5 

Co.,  15  N.  Y.  455;    [— ]   O'Brien  v.  Mich.  520,  72  Am.  D.  62. 
Boston   etc.   Eailroad    Co.,    15   Gray  §  341.      [ — ]     Forsee    v.    Alabama 

(Mass.)      20,      77      Am.      D.      347;  Groat     Southern    Eailroad    Co.,     63 

[ — ]      Chicago      &      North-Western  Miss.  66,  56  Am.  E.  801 ;   Common- 

Eailway  Co.  v.  Williams,  55  111.  185,  •  Avealth   v.    Power,    7   Mete.    (Mass.) 

8  Am.  E.  641;  [— ]  Standish  v.  Nar-  596,  41  Am.  D.   465;    [— ]    Chicago 

ragansett  Steamship  Co.,   Ill  Mass.  &  North-Western  Eailway  Co.  v.  Wil- 

512,  15  Am.  E.  66;  Johnson  v.  Con-  liams,   55   111.    185,    8   Am.   E.   641; 

cord  Eailroad  Corporation,  46  N.  H.  Atchison,  Topeka  &  Santa  Fe  Eail- 

213,  88  Am.  D.  199;  Chicago  &  Erie  road  (Jo.  v.  Gants,  38  Kan.  608,  17 

Eailroad   Co.   v.  Field,   7  Ind.   App.  Pac.  E.  54,  5  Am.  St.  E.  780 ;  Maples 

172,  34  X.  E.  E.  406,  52  Am.  St.  E.  v.  New  York  &  New  Haven  Eailroad 

444;  Illinois  Central  Eailroad  Co.  v.  Co.,    38   Conn.   557,   9   Am.   E.   434; 

Whittemore,  43  Til.  420,  92  Am.  D.  Lynch     v.      Metropolitan      Elevated 

138;     Commonwealth    v.    Power,     7  Eailway  Co.,  90  N.  Y.  77,  43  Am.  E, 

Mete,   (Mass.)   596,  41  Am,  D.  465,  14L 

146 


OF  CARKIERS  OF  PASSENGERS.  |§  342-343 

to  unnecessarily  subject  the  passenger  to  inconvenienc.-  an.! 
annoyance. 

§  342. Relations  are  reasonable  which  require  that  a 

ticket  shall  be  purchased  and  prusuutt-tl  before  pa.ssing  the 
^^ates  to  the  train,  which  direct  when  and  where  a  train  may 
be  boarded,  which  require  passengers  to  ride  fin  passenger 
trains  only  and  in  certain  cars  on  such  trains,  which  limit  the 
time  within  which  a  ticket  may  be  used,  which  provide  that 
certain  trains  shall  not  stop  at  designated  places,  which  com- 
pel orderly  conduct  and  presentable  condition  on  the  part  of 
passengers.  But  such  rules  must  be  uniform  in  their  applica- 
tion to  persons.  Discriminations  must  not  be  capricious,  but 
must  be  based  upon  some  principle  that  the  law  recognizes  as 
just. 

And  the  trainmen  need  not  wait  till  a  rule  is  broken,  but 
may  anticipate  and  prevent  unseemly  and  disorderly  conduct 
by  expelling  an  offender  before  the  overt  act  is  committed. 
Whether  a  regulation  is  reasonable  depends  upon  the  faets  of 
each  case.  If  the  facts  are  undisputed  it  becomes  a  (piestion 
of  law. 

§  343.     Ejection  of  passengers  for  breach  of  reasonable 

regulations  may  be  made  at  any  place  unless,  as  is  the  case  in 
many  states,  statutes  forbid  the  ejection  of  any  person  from  a 
train  except  at  a  regular  station  or  near  a  dwelling  house. 
But  while  the  carrier  need  not  consult  the  convenience  of  a 

§342.  [ — ]  Forsee  v.  Alabama  III.  125,  20  Am.  R.  232;  Common- 
Great  Southern  Railroad  Co.,  63  wealth  v.  Power.  7  Mete.  (Mass.) 
Miss.  66,  56  Am.  R.  801;  State  v.  596,  41  Am.  D.  465;  Pitt«burg  etc. 
Overton,  4  Zab.  (N.  J.)  435,  61  Am.  Railway  Co.  v.  Lyon,  123  Pa.  St. 
J)  671-  [_]  Chicago  &  North-  140,  16  Atl.  R.  607,  10  Am.  St. 
Western  Railway  Co.  v.  Williams,  55  R.  517;  Day  v.  Owen,  5  Mich.  520, 
111.  185,  8  Am.  R.  641;  Atchison,  72  Am.  D.  62;  Pittsburg  etc.  Rail- 
Topeka  &  Santa  Fe  Railroad  Co.  v.  way  Co.  v.  Vandyne.  57  Ind.  576, 
Gants,  38  Kan.  608,  17  Pac.  R.  54,  5  26  Am.  R.  68. 

Am.  St.  R.  780;  Johnson  V.  Concord  §343.     Illinois    Central     R.-ulroad 

Railroad  Corporation,  46  N.  H.  213,  Co.   v.   Whittemore,   43   111.   420.   92 

88   Am.   D.    199;    Houston  &   Texas  Am.    D.    138;    Atchison,    Topeka    & 

Contral    Railway    Co.    v.    Moore,    49  Santa  Fe  Railroad  Co.  v.  Gants.  3S 

Tex.  31,  30  Am.  R.  98;    [— ]   Stan-  Kan.  608,  17  Pac.  R.  54.  5  Am.  St. 

dish  V.  Narragansett  Steamship  Co.,  K.  780 ;  McCUire  v.  Philadelphia  etc. 

Ill  Mass.  512,  15  Am.  R.  66;  Lynch  Railroad  Co.,  U  Md.  532,  6  Am.  R. 

V.    Metropolitan    Elevated    Railway  .•'-^a;     [—1    O'Brien    v.    Bo.ston    etc. 

Co.,   90  N.  Y.   77,   43  Am.   R.   141;  Railroad   Co..    15   Gray    (Mass.)    20. 

Pnilninn  Palace  Car  Co.  v.  Reed,  75  77  Am.  D.   :U7:    Mannintr  v.  Ixjuis- 

147 


§  344  OF  QUASL-BAILEES. 

passeugi']-  who  hns  fori'citcd  his  right  to  ride,  yet  he  iiiust  not 
needlessly  exi)ose  such  passenger  to  peril.  He  may  use  as 
much  force  as  is  necessary  to  accomplish  the  ejection  but 
will  be  liable  if  he  uses  more  and  injury  results. 

Offer  to  pay,  or  to  conform  to  reasonable  re(iuirements, 
comes  too  late  after  the  train  has  been  stopped  to  put  the 
passenger  off.  The  passenger  has  a  right  to  resist  wrongful 
ejection,  but  he  need  not  do  so  to  preserve  his  rights.  Paying 
a  fare  under  protest  as  fully  protects  all  his  rights  as  resist- 
ance, and  the  courts  are  loath  to  encourage  resistance,  which 
may  or  may  not  be  rightful,  by  increasing  the  damages  for 
injury  received  because  of  such  resistance,  even  though  the 
passenger  may  be  within  his  rights. 

(3)     Duty  to  Accept  All. 

§  344.  Common  carriers  of  passengers  rest  under  the  same 
duty  to  serve  all  as  do  common  carriers  of  goods.  It  is  the 
rule  therefore  that  all  persons  who  present  themselves  in 
proper  condition,  ready,  able  and  willing  to  pay  their  fare, 
at  a  proper  time  and  place,  are  entitled  to  be  carried  by  the 
carrier,  provided  he  has  room  in  his  vehicle.     It  is  equally 

ville   &   Nashville   Kailroad    Co.,    95  82  Am.  St.  E.  460.     Compare  Yorton 

Ala.  392,  1]   S.  E.  8,  36  Am.  St.  E.  v.    Milwaukee   etc.   Eailway   Co.,    54 

225;    Hoffbauer  v.   Delhi   etc.   Bail-  Wis.  234,  11  N.  W.  E.  482,  41  Am. 

read  Co.,  52  Iowa  342,  35  Am.  E.  E.    23,   with  Lake   Erie  &  Western 

278;    Jeffersonville   Eailroad   Co.   v.  Eailway  Co.  v.  Fix,  88  Ind.  381,  45 

Eogers,  38  Ind.  116,  10  Am.  E.  103;  Am.   E.  464,  and    [— ]    O'Eourke  v. 

[ — ]    Forsee    v.    Alabama    &    Great  Citizens'    Street    Eailway    Co.,    103 

Southern  Eailroad  Co.,  63  Miss.  66,  Tenn.  124,  52  S.  W.  E.  872,  76  Am. 

56    Am.    E.    801;    Philadelphia    etc.  St.   E.   639. 

Eailroad  Co.  v.  Larkin,  47  Md.  155,  §  344.     [— ]     Zachery    v.    Mobile 

28  Am.  E.  442 ;  Memphis  &  Charles- '  &  Ohio  Eailroad  Co.,  74  Miss.  520, 

ton  Eailroad  Co.  v.  Benson,  85  Tenn.  21   S.   E.   246,   60   Am.   St.   E.   529 ; 

627,  4  S.  W.  E.  5,  4  Am.  St.  E.  776 ;  ^  Day  v.  Owen,  5  Mich.  520,   72  Am. 

Alabama    Great    Southern    Eailroad  D.    62 ;    Beekman    v.    Saratoga    etc. 

Co.  V.  Frazier,   93  Ala.  45,  9  S.  E.  Eailroad  Co.,   3  Paige  Ch.    (N.  Y.) 

303,    30    Am.    St.    E.    28;    Haug    v.  45,  22  Am.  D.  679;   [— ]   Chicago  & 

Great   Northern   Eailway   Co.,   8   N.|  North-Western  Eailway  Co.   v.  Wil- 

D.  23,  77  N.  W.  E.  97,  73  Am.  St.*  liams,   55   111.    185,    8    Am.   E.   641; 

E.  727;  Hibbard  v.  Erie  Eailroad  Eailroad  Commissioners  v.  Portland 
Co.,  15  N.  Y.  455;  Van  Dusan  v.  etc.  Eailroad  Co.,  63  Me.  269,  18 
Grand  Trunk  Eailway  Co.,  97  Mich.  Am.  E.  208;  McDufiPee  v.  Portland 
439,  56  N.  W.  E.  848,  37  Am.  St.  E.  etc.  Eailroad  Co.,  52  N.  H.  430,  13 
.354;  Kiley  v.  Chicago  City  Eailway  Am.  E.  72. 

Co.,   189  111.   384,  59  N.  E.  E.   794, 

148 


OF  CARRIERS  OF  PASSENGERS.  §§  345-34? 

true  that  only  those  who  so  present  themselves  have  any  claim 
to  be  carried. 

§  345.  The  carrier  may  refuse  to  accept  ili.jsc  who  an-  innit 
to  travel,  who  refuse  to  obey  reasonable  regulations,  whu 
wish  to  travel  for  illegal  or  immoral  purposes,  or  whose  pres- 
ence  is  offensive  or  dangerous  to  the  comfort  or  health  of 
passengers,  or  might  cause  disorder  and  violence  on  the  way 
or  at  the  end  of  the  journey.  And  no  one  has  a  right  to  insiMt 
on  being  carried  on  Sunday,  or  for  the  purpose  of  engaging  in 
traffic  on  the  route.  Such  business  the  carrier  has  a  right  to 
control  for  its  oavu  benefit. 

(4)     Duty  to  Furnish  Accommodations. 

§  346.  Equal  accommodations  must  be  provided  for  all 
passengers  of  a  certain  class.  But  separate  cars  may  l)e  pro- 
vided for  persons  of  different  color,  or  sex,  provided  they  are 
substantially  equal,  and  more  elaborate  accommodations  may 
be  provided  for  holders  of  first  class  tickets,  or  for  throutrh 
passengers,  than  for  others. 

§  347.  Means  of  conveyance. — The  carrier  is  bound  to  use 
all  reasonable  efforts  to  provide  adequate  accommodations  f<»r 
its  passengers.  It  undertakes  to  furnish  them  not  only  trans- 
portation but  a  seat,  and  a  passenger  need  not  sui-render  his 

§345.     [— ]     Zachery    v.    Mobile  K.     1016,    82    Am.    St.     R.      1.'47: 

&  Oliio  Railroad  Co.,  74  Miss.  520,  I—]  Memphis  &  Charleston  Railroad 

21   S.   R.   246,   60  Am.   St.   R.   529 ;  Co.  v.  Benson,  85  Tenn.  627,  4  S.  W. 

Sevier     v.     Vicksburg     &     Meridian  R.  5,  4  Am.  St.  R.  776. 

Railroad  Co.,  61  Miss.  8,  48  Am.  R.  §  347.     St.  Louis  etc.  Railway  Co. 

74;      Lemont      v.      Washington      &  v.   Leigh,   45   Ark.   368.  55   Am.    R. 

Georgetown   Railroad    Co.,    1    Mack.  558;    [— ]     Memphis    &    Charleston 

(D.  C.)   180,  47  Am.  R.  238;   Pear-  Railroad    Co.    v.    Benson,    85    Tenn. 

son  v.Duane,  4  Wall.   (U.  S.)  605;  627,  4  S.  W.  R.  5,  4  Am.  St.  R.  776; 

Walsh  V.  Chicago,  Milwaukee  &  St.  [—1     Ingalls     v.     Bills,     9     .Met.-. 

Paul   Railway   Co.,    42   Wis.    23,    24  (Mass.)    1,   43   Am.   D.   346;    Hege- 

Am.  R.  376;  Pittsburg  etc.  Railway  man  v.  Western   Railroad  Corp.,   16 

Co.  V.  Vandyne,  57  Ind.  576,  26  Am.  Parb.   (N.  Y.)   353,  13  X.  Y.  9.  64 

jj   gg  Am.   D.   517;    [— ]    Meier  v.    Ponn- 

§346      [— ]     Chicago     &     North-  sylvauia    Railroad    Co.,    64    Pa.    St. 

Western    Railway    Co.    v.    Williams,  225,    3    Am.    R.    581;    Trcadwell    v. 

55    111     185,    8    Am.   R.    641 ;    West  Whittier,  80  Cal.  574,  22  Pa.-.  R.  26*.. 

Chester  &  Philadelphia  Railroad  Co.  13  Am.  St.  R.  175;  Spellman  v.  Lin- 

V.  Miles,  55  Pa.  St.  209,  93  Am.  D.  coin  Rapid  Transit  Co.,  ^^^^^^Jj-  ^^♦^; 

744;  Bowie  v.  Birmingham  Railway  55  N.  W.  R.  270,  38  Am.  ^v  '? 
&  Electric  Co.,  125  Ala.  397,  27  S. 

149 


§§  348-350  OF  QUASI -BAILEES. 

ticket  until  he  is  furnished  a  seat.  But  he  cannot  insist  upon 
being  carried  free,  and  if  he  chooses  to  ride  without  a  seat 
he  must  pay.  If  he  is  unwilling  to  do  so  he  must  leave  the 
train  at  the  first  reasonable  opportunity  and  sue  the  carrier 
for  the  damages  proximately  resulting  from  its  breach  of 
contract. 

For  the  slightest  negligence  on  the  part  of  the  carrier  of 
passengers  in  providing  safe  means  of  conveyance  it  is  liable, 
if  injury  to  the  passenger  results.  The  carrier  must  use  the 
utmost  diligence  to  provide  such  vehicles  as  shall  insure  the 
safety  of  the  passengers,  but  for  latent  defects  which  no  known 
and  practicable  test  would  discover  it  is  not  responsible.  By 
the  weight  of  authority  the  carrier  is  as  to  the  passenger 
also  liable  for  the  failure  on  the  part  of  the  manufacturer  to 
discover  defects  in  the  vehicle  which  known  tests  would  have 
revealed.  There  is  no  relation  between  the  manufactur  and 
the  passenger,  but  the  carrier  makes  the  manufacturer  his 
agent  or  servant  by  employing  him  to  inake  the  vehicle. 

§  348.  Roadbeds,  bridges,  etc.,  must  be  kept  in  safe  and 
usable  condition,  and  for  failure  so  to  do  the  carrier  incurs  the 
same  liability  as  for  using  a  defective  vehicle. 

§  349. Latest  improvements.— In  the  construction  and 

equipment  of  their  vehicles  and  road  carriers  of  passengers 
must  keep  pace  with  the  march  of  progress.  The  law  does 
not  require  the  adoption  of  every  new  device  no  matter  how 
novel  or  expensive,  but  it  does  demand  that  the  carrier  shall 
employ  the  latest  and  best  devices  in  general  use  by  carriers 
of  that  class. 

§  350.  Agents  and  servants  of  the  carrier  must  be  com- 
I)etent,  careful  and  courteous.     For  any  injury  resulting  from 

§348.     O'Donnell      v.      Allegheny  3   Am.   R.   581;    Le  Barron   v.   East 

Valley  Railroad  Co.,  59  Pa.  St.  239,  Boston  Ferry  Co.,  11  Allen   (Mass.) 

98  Am.   D.   336;    Ohio   Valley   Rail-  312,    87   Am.   D.    717;    Hegeman   v. 

way  Co.  V.  Watson,  93  Ky.  654,  21  Western   Railroad   Corp.,    13    N.   Y. 

S.  W.  R.   244,  40  Am.   St.   R.   211 ;  9,  64  Am.  D.  517 ;  Treadwell  v.  Whit- 

[— ]     Commonwealth    v.    Boston    &  tier,  80  Cal.  574,  22  Pae.  R.  266,  13 

Maine  Railroad  Co.,  129  Mass.  500.  Am.  St.  R.  175. 

37  Am.  R.  382 ;  Louisville,  New  Al-  §  350.     Goddard   v.   Grand    Trunk 

bany  &  Chicago  Railway  Co.  v.  Sny-  Railway  Co.,  57  Me.  202,  2  Am.  R. 

der,  117  Ind.  435,  20  N.  E.  R.  284,  39;  Birmingham  Railway  &  Electric 

10  Am.  St.  R.  60.  Co.   v.   Baird,    130   Ala.   334,    30    S. 

§  349.     [— ]     Meier     v.     Pennsyl-  R.   456,   89   Am.   St.   R.   43 ;    Haver 

vania  Railroad  Co.,  64  Pa.  St.  225,  v.    Central    Railroad   Co.,   62   N.    J. 

15Q 


OF  (  ARRIERR  OF  PASSEXriERS.  ^§  351-352 

tlie  iucoiiipetenco,  carelessness  or  misconduct  of  its  scrvauts 
tlie  carrier  is  liable,  whether  it  knew  of  such  unfitness  or  not. 
The  liability  ai-ises  not  out  of  the  responsibility  of  the  master 
for  the  acts  of  his  servants,  bnt  out  of  the  obli^jation  which 
the  law  imposes  upon  the  carrier  to  protect  the  passenger  fr«.ui 
ill  treatment  by  its  servants,  fellow  passengers  or  strangers. 
The  severest  rule  of  damages  is  applied  if  a  company  retains 
in  its  employ  one  known  to  be  of  intemperate  habits,  or  in  any 
way  unfit. 

§  351.  Stational  facilities.— A  railroad  is  recjuin-d  t»i  main- 
tain a  station,  means  of  access  to  and  from  tlie  same,  and 
facilities  for  getting  to  and  from  trains,  that  are  reasonably 
safe.  There  is  not  the  same  reason  for  the  utmost  care  abo\it 
the  station  that  exists  as  to  the  roadway  and  cars,  but  for  the 
slightest  negligence  in  providing  and  maintaining  rea.sonably 
safe  stational  facilities  the  carrier  is  liable  if  injury  results. 
As  to  persons  not  passengers  who  have  business  at  the  station 
only  ordinary  care  is  required. 

(5)     Liability  for  Injuries  to  tin  Ptissoifji  r. 

§  352.  Measure  of  diligence. — The  connnon  carrier  of  pas- 
sengers is  bound  to  use  for  the  safety  of  his  passengers  all 
precautions  as  far  as  human  care  and  foresight  will  go.     For 

L.  282,  41  Atl.  E.  916,  72  Am.  St.  E.  59  Pa.  St.  129,  98  Am.  D.  317;  Cross 
047;  Savannah  etc.  Eailway  Co.  v.  v.  Lake  Shore  &  Michigan  Southern 
Quo,  103  Ga.  125,  29  S.  E.  E.  607,  Kaihvay  Co.,  69  Mich.  36.3,  37  N.  \V. 
68  Am.  St.  R.  85;  [— ]  Common-  R.  361,  13  Am.  St.  E.  399;  McKonc 
ivealth  V.  Boston  &  Maine  Eailroad  v.  Michigan  Central  Railroad  Co., 
Co.,  129  Mass.  500,  37  Am.  R.  382;  51  Mich.  601,  17  \.  W.  R.  74,  47 
Gillingham  v.  Ohio  River  Railroad  Am.  E.  596;  Tubbs  v.  Michigan 
Co.,  35  W.  Va.  588,  14  S.  E.  R.  243,  Central  Railroad  Co.,  107  Mich.  108. 
29  Am.  St.  E.  827.  64  N.  W.  B.  1061,  61  Am.  St.  R. 
§351.  Delaware,  Lackawanna  &  320;  McDonald  v.  Chicago  &  North- 
western Eaihoad  Co.  v.  Trantwein,  western  Eailway  Co.,  26  la.  124,  96 
5-i  N.  J.  L.  169,  19  Atl.  E.  178,  19  Am.  D.  114;  Atlantic  City  Rail- 
Am.  St.  E.  442;  Barker  v.  Ohio  road  Co.  v.  Goodin,  62  N.  ,T.  L.  .31M. 
Eiver  Railroad  Co.,  51  W.  Va.  423,  42  Atl.  E.  333,  72  Am.  St.  R.  652. 
41  S.  E.  R.  148,  90  Am.  St.  R.  808;  §352.  [—1  Cliristie  v.  Griggs, 
r — 1  Warren  v.  Fitchburg  Railroad  2  Camp.  79;  f— 1  Philadelphia  & 
Co.,  8  Allen  (Mass.)  227,  85  Am.  Reading  Railroad  Co.  v.  Derby,  14 
D.  700;  Little  Rock  etc.  Railway  Co.  How.  (U.  S.)  468;  1—1  Steamboat 
V.  Lawton,  55  Ark.  428,  18  S.  W.  R.  New  World  v.  King,  16  How.  (U. 
£43,  29  Am.  St.  R.  48,  and  note;  S.)  469;  |  — 1  Tngalls  v.  Bills.  9 
Gillis  V.  Pennsylvania  Railroad  Co..  Mete.    (Mass.)    1,   43   Am.    P.   346; 

151 


§353 


OF  QUASI-BAILEES. 


injuries  to  the  passenger  proximately  caused  by  any,  even  the 
slightest,  negligence  of  the  carrier,  the  latter  is  liable.  If 
however  the  contributory  negligence  of  the  passenger  is  the 
proximate  cause  of  the  injury  the  carrier  is  of  course  not 
liable. 

The  carrier  of  passengers  then  is  not,  like  the  common  car- 
rier of  goods,  an  insurer  against  loss,  "but  as  there  are  com- 
mitted to  his  charge  for  the  time  the  lives  and  safety  of  persons 
of  all  ages  and  of  all  degrees  of  ability  for  self -protection,  and 
as  the  slightest  failure  in  watchfulness  may  be  destructive  of 
life  or  limb,  it  is  reasonable  to  require  of  him  the  most  perfect 
care  of  prudent  and  cautious  men;  and  his  undertaking  as  to 
his  passengers  goes  to  this  extent,  that  as  far  as  human  fore- 
sight and  care  can  reasonably  go  he  will  transport  them 
safely." 

s;  353.    As  far  as  human  care  and  foresight  will  go  is 

a  phrase  that  has  come  to  have  a  technical  meaning  in  this 
connection.  On  the  one  hand  it  does  not  mean  all  the  care 
conceivable  regardless  of  expense,  mode  of  conveyance  or 
extent  of  the  carrier's  business.     On  the  other,  it  does  mean 


Farish  v.  Reigle,  11  Grat.  (Va.)  697, 
62  Am.  D.  666;  [— ]  Hollister  v. 
Nowlen,  19  Wentl.  (N.  Y.)  234,  32 
Am.  D.  455 ;  Hadley  v.  Cross,  34  Vt. 
586,  80  Am,  D.  699;  [— ]  Meier  v. 
Pennsylvania  Eailroad  Co.,  64  Pa. 
St.  225,  3  Am.  R.  581;  [— ]  Jam- 
mison  v.  Chesapeake  &  Ohio  Eailway 
Co.,  92  Va.  327,  23  S.  E.  R.  758,  53 
Am.  St.  R.  813;  Bonce  v.  Dubuque 
Street  Railway  Co.,  53  Iowa  278,  5 
]S.  W.  R.  177,  36  Am.  R.  221; 
.Treadwell  v.  Whittier,  80  Cal^74, 
22  Pae.  R.  266,  13  Am.  St.  R.  175; 
Spellman  v.  Lincoln  Rapid  Transit 
Co.,  36  Neb.  890,  55  N.  W.  R.  270, 
38  Am.  St.  R.  753;  Hegeman  v. 
Western  Railroad  Corp.,  13  N.  Y. 
9,  64  Am.  D.  517;  McKeon  v.  Chi- 
cago, Milwaukee  &  St.  Paul  Railway 
Co.,  94  Wis.  477,  69  N.  W.  R.  175, 
59  Am.  St.  R.  910 ;  Connell  v.  Chesa- 
peake &  Ohio  Railway  Co.,  93  Va. 
44,  24  S.  E.  R.  467,  57  Am.  St.  R. 
786;   Cooley  on  Torts,  642. 


§  353.  In  addition  to  the  cases 
cited  in  sec.  352,  see  [ — ]  Dodge 
V.  Boston  &  Bangor  Steamship  Co., 
148  Mass.  207,  19  N.  E.  R.  373,  12 
Am.  St.  R.  541;  [ — ]  Pennsylvania 
Railroad  Co.  v.  Aspell,  23  Pa.  St. 
147,  62  Am.  D.  323;  Baltimore  & 
Ohio  Railroad  Co.  v.  Breinig,  25  Md. 
378,  90  Am.  D.  49;  [— ]  Warren  v. 
Fitchburg  Eailroad  Co.,  8  Allen 
(Mass.)  227,  85  Am.  D.  700; 
[ — ]  Railroad  v.  Lockwood,  17  Wall. 
(U.  S.)  357;  Baltimore  &  Ohio 
Railroad  Co.  v.  Worthington,  21 
Md.  275,  83  Am.  D.  578;  Dela- 
ware, Lackawanna  &  Western  Rail- 
road Co.  v.  Trautwein,  52  N.  J.  L. 
169,  19  Atl.  R.  178,  19  Am.  St.  R. 
442;  Barker  v.  Ohio  River  Railroad 
Co.,  51  W.  Va.  423,  41  S.  E.  R.  148, 
90  Am.  St.  R.  808;  Weightman  v. 
Louisville  etc.  Railway  Co.,  70  Miss. 
563,  12  So.  R.  586,  35  Am.  St.  R. 
660. 


15! 


OF  CARRIERS  OF  PASSENGERS.  §§  354-35:i 

the  utmost  care  and  diligence  of  very  cautious  persons,  a  rigor- 
ous insistence  upon  all  the  diligence  consistent  with  the  nature 
of  the  carrier's  undertaking  and  the  requirements  of  the 
business. 

As  already  noted  (§§  346-351),  this  diligence  extends  to 
careful  provision  as  to  the  means  of  conveyance,  roadbed, 
bridges,  improved  appliances,  proper  stational  facilities  and 
careful  and  considerate  agents  and  servantK.  The  care  must 
be  proportioned  to  the  character  of  the  transportation  em- 
ployed by  the  carrier  and  to  all  the  circumstanc«'s  of  the 
journey.  Sick  or  infirm  passengers  must  be  treated  with  hu- 
manitj"  and  consideration.  If  there  is  an  accident  the  pre- 
sumption arises  that  the  carrier  has  failed  to  exerci.se  this 
extraordinary  care  and  the  burden  rests  upon  the  carrier  to 
repel  such  presumption. 

§  354.     Gratuitous  passengers. — This  care  is  exacted  as 

to  all  passengers  alike.  Public  policy  demands  that  human 
life  be  protected,  and  the  fact  that  a  passenger  is  riding 
gratuitously  furnishes  no  excuse  for  the  carrier's  negligence. 
The  liability  does  not  grow  out  of  a  contract,  expressed  (»r 
implied,  but  the  "law  raises  the  duty  out  of  regard  for  human 
life  and  for  the  purpose  of  securing  the  utmost  diligence  by 
carriers  in  protecting  those  who  have  committed  themselves  to 
their  hands."  This  protection  does  not  extend  to  one  not 
lawfully  a  passenger. 

§  355.  Contributory  neg-ligence. — Men  are  in  general  re- 
sponsible for  the  consequences  reasonably  to  be  anticipated 
from  their  own  acts.  A  passenger  therefore  can  not  hold  a 
carrier  liable  for  an  injury  from  any  cause  if  his  own  negli- 
gence was  a  natural  and  proximate  cause  contributing  to  the 
injurious  result.     In  a  word  the  passenger  can  not  hold  the 

§  354.     Ante,  sec.   323    and    cases  20  Wash.  466,  55  Pac.  R.  631.  72  Am. 

f.ited.     [—]  Philadelphia  &  Reading  St.    R.    121;    Walker     v.    Vioksburj; 

Railroad  Co.  v.  Derby,  14  How.   (U.  etc.  Railroad  Co.,  41   I.a.  Ann.  795. 

S.)    468;     [— ]    Railroad    v.    Lock-  6  So.  R.  916.  17  Am.  St.  R.  417,  and 

wood,   17   Wall.    (U.   S.)    357;    Car-  note;   [— ]   Jammison  v.  Chesapeake 

roll   V    Staten   Island   Railroad   Co..  &  Ohio  Railway  Co..  92  Va.  .TJ7.  23 

58  N.  Y.  126,  17  Am.  R.  221.  S.   E.   R.   758,   53   Am.   St.   R.   S13; 

§355      [_]     Pennsylvania     Rail-  Florida     Southern     Railway    Co.    v. 

road  Co.  V.  Aspell    23  Pa.  St.   147,  Hirst.  .30  FIa_.   1.   11   So.  R.  506,  .32 

62  Am.  D.  323;  Graham  v.  McNeill.  Am.  St.  R.  17. 

153 


^i$  356-357  OF   QUASr-BAILEES. 

ean-ioi-  liable  for  an  injury  if  he  himself  has  been  guilty  of 
contributory  ne^li.cence. 

>?  356.     What    amounts    to    contributory    negligence    is 

usually  a  (juestion  for  the  jury  to  determine  from  all  the  facts 
and  circumstances  of  the  case.  Even  where  the  facts  are 
undisputed  it  is  still  ordinarilj'^  a  question  for  the  jury  whether 
the  conduct  of  the  passenger  was  that  to  be  expected  of  a 
reasonably  prudent  man  under  like  circumstances.  If  it  was 
not  there  was  negligence.  The  facts  in  some  cases  make  the 
negligence  or  prudence  of  a  passenger  so  clear  that  but  die 
inference  can  be  drawn  therefrom.  In  such  cases  contributory 
negligence  is  a  question  of  law  for  the  court. 

v^  357.     Illustrations. — The    following    are    facts    from 

which  a  jury  may  properly  determine  according  to  the  sur- 
rounding circumstances  of  each  case  that  the  passenger  has 
or  has  not  been  guilty  of  contributory  negligence :  entering 
or  leaving  a  moving  train,  riding  on  the  platform  or  on  a 
part  of  the  train  not  intended  for  passengers  when  seats  are 
provided  by  the  carrier  in  the  passenger  cars,  alighting  at  a 
place  other  than  the  regular  stopping  place,  riding  with  the 
arms  or  other  part  of  the  body  projecting  beyond  the  out- 

§  35g_     [ — ]     filer    v.  New    York  way    Co.,    96    Wis.    141,    71    N.    W. 

Central  Kailroad  Co.,  49   N.  Y.   47,  E.  97,  65  Am.  St.  E.  35. 
10  Am.  E.  327;   Lambeth  v.  North  §357.      [— ]     Filer   v.   New   York 

Carolina  Eailroad  Co.,  66  N.  C.  494,  Central  Eailroad  Co.,  49  N.   Y.   47, 

8  Am.  E.  508;   Graham  v.   McNeill,  10  Am.   E.   327;    [— ]    Pennsylvania 

20   Wash.   466,   55   Pac.   E.   631,   72  Eailroad   Co.   v.   Aspell,   23   Pa.   St. 

Am.  St.  E.  121;  Atlantic  City  Eail-  147,   62  Am.   D.   323;   Buel  v.   New 

road  Co.  v.  Goodin,  62  N.  J.  L.  394,  York    Central    Eailroad    Co.,    31    N. 

42  Atl.  E.  333,  72  Am.  St.  E.  652;  Y.   314,   88   Am.   D.   271;   Weber   v. 

Wade  V.  Columbia  Eailway  etc.  Co.,  Kansas  City  Cable  Eailway  Co.,  100 

51  S.  C.  296,  29  S.  E.  E.  233,  64  Am.  Mo.      194,      12      S.      W.      E.      804, 

St.  E.  676;  Tubbs  v.  Michigan  Cen-  13     S.     W.     E.     587,     18     Am.     St. 

tral  Eailroad  Co.,  107  Mich.  108,  64  E.    541 ;    Neff   v.   Harrisburg    Trac- 

N.  W.  E.  1061,  61  Am.  St.  E.  320;  tion     Co.,     192     Pa.     St.     501,     43 

Terre    Haute    etc.    Eailroad    Co.    v.  Atl.   E.   1020,    73   Am.   St.   E.    825; 

Buck,  96  Ind.  346,  49  Am.  E.  168;  New    York,    Lake    Erie    &    Western 

Weber   v.   Kansas   City  Cable   Eail-  Eailroad  Co.  v.  Enches,  127  Pa.  St. 

way  Co.,  100  Mo.  194,  12  S.  W.  E.  316,  17  Atl.  E.  991,  14  Am.  St.  E. 

804,  13  S.  W.  E.  587,  18  Am.  St.  E.  848;    Lambeth     v.    North     Carolina 

541;    Piper   v.   New    York    Central  Eailroad  Co.,  66  N.  C.  494,  8  Am, 

Eailroad  Co.,  156  N.  Y.  224,  50  N.  E.  508;  Memphis  &  Charleston  Eail- 

E.  E.  851,  66  Am.  St.  E.  560 ;  Schif-  road  Co.  v.  Whitfield,  44  Miss.  466, 

fler  V.  Chicago  &  Northwestern  Eail-  '^  Am.  E.  699;   St.  Louis  etc.  Eail' 

154 


OF  CAKKIERS  OF  PASSENGERS. 


358 


side  of  the  car,  alighting  from  a  ear  in  front  of  a  train  movinK 
on  another  track. 

If  a  trainman  invites  or  directs  a  pa.ssenger  to  t?et  on  or  off 
a  moving  train  the  presumption  arises  that  such  trainman 
knew  his  business  and  that  it  is  safe  to  do  so.  And  even  if 
some  danger  is  apparent  to  the  passenger  he  will  be  justitit-d 
in  acting  as  a  reasonably  prudent  man  would  be  supposed  to 
act  under  similar  circumstances.  If  the  carrier  by  its  fault 
puts  the  passenger  to  a  choice  between  jumping  from  a 
moving  train  and  being  carried  by  his  station,  it  is  responsible 
for  results,  unless  the  passenger  acts  rashly  and  i-xposes  him- 
self to  danger  that  a  prudent  man  would  not  incur.  And  tin- 
carrier  is  liable  if  its  trains  are  so  carelessly  operated  as  to 
lead  passengers  in  the  exercise  of  reasonable  ijrudence  to 
apprehend  danger,  and  in  trying  to  escape  it  they  are  injured. 
This  is  true  though  it  may  turn  out  that  they  would  have 
received  no  harm  but  for  their  attempt  to  escape. 


§  358.     Proximate  cause. — The  contributory  negligence 

of  the  passenger  must  have  been  a  proximate  cause  of  the 
injury.     Even  when  negligent  the  carrier  will   not   be   liable 

road  Co.  v.  Cantrell,  37  Ark.  .519,  40      274;   Terrc  Haute  etc.  Railroad  Co. 


Am.  R.  105;  Florida  Southern  Rail- 
way Co.  V.  Hirst,  30  Fla.  1,  11  So. 
E.  506,  32  Am,  St.  E.  17;  Illinois 
Central  Railroad  Co.  v.  Green,  81  111. 
19,  25  Am.  E.  255 ;  Walker  v.  Vicks- 
burg  etc.  Railroad  Co.,  41  La.  Ann. 
795,  6  So.  R.  916,  17  Am.  St.  R. 
417,  and  note;  Evansville  etc.  Rail- 
road Co.  V.  Athon,  6  Ind.  App.  295, 
33  N.  E.  R.  469,  51  Am.  St.  E.  303; 
Graham  v.  McNeill,  20  Wash.  466, 
55  Pac.  E.  631,  72  Am.  St.  E.  121; 
Benedict  v.  Minneapolis  &  St.  Louis 
Railroad  Co.,  86  Minn.  224,  90  N. 
W.  R.  360,  91  Am.  St.  R.  345 ;  Clerc 
V.  Morgan's  etc.  Railroad  &  Steam- 
ship Co.,  107  La.  370,  31  So. 
E.  886,  90  Am.  St.  E.  319;  Creamer 
V.  West  End  Street  Eailway  Co.,  156 
Mass.  320,  31  N.  E.  E.  391,  32  Am. 
St.  E.  456;  Cartwright  v.  Chicago  & 
Grand  Trunk  Railway  Co.,  52  :\Iich. 
606,   18   N.   W.   R,   380,   50   Am.   R. 


V.  Buck,  96  Ind.  346,  49  Am.  R. 
168;  Irish  v.  Northern  Pacific  Rail- 
road Co.,  4  Wash.  48,  29  Pac.  R.  845, 
31  Am.  St.  E.  899;  St.  Louis  etc. 
Eailway  Co.  v.  Murray,  55  Ark.  248, 
18  S.  W.  R.  50,  29  Am.  St.  R.  32. 

§  358.  I — ]  Jammison  v.  Chesa- 
peake &  Ohio  Railway  Co.,  92  Va. 
327,  23  S.  E.  R.  758,  53  Am.  St.  R. 
813;  Schiffler  v.  Chicago  &  North- 
western Railway  Co.,  96  Wi.s.  141, 
71  N.  W.  R.  97,  65  Am.  St.  R.  35; 
Weber  v.  Kansas  City  Cable  Railway 
Co.,  100  Mo.  194,  12  S.  W.  R.  804. 
13  S.  W.  587,  18  Am.  St.  R.  541; 
]\Iorrisscy  v.  Wiggins  Ferry  Co.,  43 
Mo.  380,  97  Am.  D,  402;  Zenip  v. 
Wilmington "  etc.  Railroad  Co..  9 
Rich.  L.  (S.  C.)  84,  64  Am.  D.  763; 
McDonald  v.  International  etc.  Kail- 
way  Co.,  86  Te.\.  1,  22  S.  W.  R.  939, 
40  Am.  St.  R.  803.  and  note.  Sw 
post,  sec.  416. 


155 


§§359-360  OF  QUASI-BAILEES. 

if  its  negligence  was  not  the  proximate  cause  of  the  injury, 
or  if  the  passenger's  negligence  and  that  of  the  carrier  both 
directly  contributed  to  the  result.  But  on  the  other  hand,  the 
negligence  of  the  passenger  is  no  defence  to  the  carrier  unless 
such  negligence  so  far  contributed  to  the  result  as  to  be  in 
some  degree  a  proximate  cause  of  the  injury  complained  of. 
If  in  spite  of  the  negligence  of  the  passenger  the  carrier  might 
have  averted  the  injury,  this  last  negligence  will  be  the  proxi- 
mate cause  and  the  carrier  will  still  be  liable. 

Sleeping  Car  Companies. 

§  359.  Not  common  carriers. — Sleeping  car  companies,  it 
has  been  seen  (§  166),  are  not  innkeepers.  Neither  are  they, 
as  to  the  baggage  and  valuables  of  the  passenger,  common 
carriers.  The  railroad  company  is  the  carrier,  and  the  sleep- 
ing car  company  merely  furnishes  the  car  and  reserves  to  itself 
the  right  to  provide  a  conductor  and  a  porter,  and  to  charge 
for  the  use  of  its  berths  any  person  who  has  become  a  pas- 
senger of  the  railroad,  and  yet  in  many  respects  the  duties  of 
sleeping  car  companies  are  similar  to  those  of  common  carriers 
of  passengers  and  their  liabilities  are  most  naturally  treated 
of  in  this  connection. 

§  360.  Nature  of  their  undertaking. — "A  sleeping  car  com- 
pany holds  itself  out  to  the  world  as  furnishing  safe  and  com- 
fortable cars,  and  when  it  sells  a  ticket  it  impliedly  stipulates 
to  do  so.  It  invites  passengers  to  pay  for  and  make  use  of  its 
cars  for  sleeping,  all  parties  knoAving  that  during  the  greater 
part  of  the  night  the  passenger  will  be  asleep  powerless  to 
protect  himself  or  to  guard  his  property."  The  company  is 
therefore  bound  to  furnish  reasonable  protection,  to  have  an 
employee  to  watch  the  berths  while  the  passengers  are  sleep- 

§  359.     [ — ]     Blum     v.     Pullman  Palace  Car  Co.  v.  Lowe,  26  Am.  St. 

Palace  Car  Co.,  1  Flip.  (U.  S.)  500;  K.  331,  and  Pullman  Palace  Car  Co. 

[— ]     Pullman    Palace    Car    Co.    v.  v.  Pollock,  69  Tex.  120,  5  S.  W.  E. 

Smith,  73  111.  360,  24  Am.  R.  258 ;  814,  5  Am.  St.  R.  31. 

Pullman    Palace   Car   Co.   v.   Gavin,  §  360.     [ — ]     Blum     v.     Pullman 

93  Tenn.  53,  23  S.  W.  R.  70,  42  Am.  Palace  Car  Co.,  1  Flip.  (U.  S.)  500; 

St.  R.  902;  Pullman  Palace  Car  Co.  Lewis  v.   New   York   Central   Sleep- 

V.  Matthews,  74  Tex.  654,  12  S.  W.  ing   Car   Co.,    143   Mass.   267,   9   N. 

R.  744,  15  Am.  St.  R.  873;  Pullman  E.  R.  615,  56  Am.  R.  852;  Carpenter 

Palace  Car  Co.  v.  Adams,  120  Ala.  v.  New  York  etc.  Railroad  Co.,  124 

581,   24  So.  R.  921,   74  Am.   St.  R.  N.  Y.  53,  26  N.  E.  R.  277,  21  Am. 

53.     See  extended  note  to  Pullman  St.  R.  644;  Pullman  Palace  Car  Co, 

156 


OF  CAKKJ  mm  OF  PASSENGERS.  ||  361-362 

inii-,  to  defend  their  property  from  thieves  and  tlicir  p.-rsons 
from  msult,  and  in  general,  to  exercise  a  degree  of  care  com- 
mensurate with  the  danger  to  which  passengers  are  exposed. 
If  there  is  a  vacant  berth  in  the  car  the  company  is  bound 
to  furnish  this  accommodation  and  protection  to  any  pnjper 
person  who  offers  at  the  proper  time  and  place  to  pay  the 
fare  fixed  therefor,  in  other  words,  the  calling  is  a  public  one. 
§361.  Liability  of  the  sleeping-  car  company.— If  through 
lack  of  commensurate  care  or  througli  faihu-e  to  suitably  guard 
and  protect  the  passenger  and  his  effects,  injury  is  suffered, 
the  company  is  liable.  The  liability  is  a  question  of  negli- 
gence. It  must  further  appear  that  the  loss  was  not  due  to  the 
negligence  of  the  passenger,  and  that  the  goods  or  valuables 
lost  were  such  as  may  properly  be  carried  for  the  use  or 
convenience  of  the  passenger  upon  the  journey. 

Owners  of  Passenger  Elevators. 

§362.  Are  carriers  of  passengers.— In  accordance  with  the 
general  rule  that  the  utmost  care  and  diligence  must  be  exer- 
cised in  all  cases  where  human  life  is  involved,  it  is  lield 
that  those  who  operate  passenger  elevators  in  jiublic  or  semi- 
public  buildings  are  carriers  of  passengers  undertaking  to 
carry  safely  passengers  who  use  the  elevator,  so  far  as  the 
utmost  human  care  and  foresight  Avill  go.  For  the  slightest 
neglect  in  the  construction,  repair  or  operation  of  the  elevator 
resulting  in  injury  to  persons  riding  therein  the  owners  or 
operators  are  liable. 

v.  Adams,   120  Ala.   581,   24  So.   R.  S  362.     Tmidwcll   v.   Whittier,   80 

921,   74  Am.   St.   E.   53;    Council  v.  Cal.   574,    22   Pae.   R.    266.    13   Am. 

Chesapeake  &  Ohio  Railway  Co.,  93  St.    R.    175;    Southern    Building    & 

Va.   44,    24   S.   E.    R.    467,   57   Am.  Loan     Association     v.     Lawson,     97 

St.  R.  786;  Nevin  v.  Pullman  Palace  Tenn.  367,  37  S.  W.  R.  86,  56  Am. 

Car  Co.,  106  III.  222,  46  Am.  R.  688.  St.   R.   804;    Goodsell   v.   Taylor,  41 

§  3G1.     Lewis   v.   New   York   Cen-  :\rinn.  207,  42  N.  \V.  R.  873,  16  Am. 

tral  Sleeping  Car  Co.,  143  Mass.  267,  St.    R.    700;    Hartford    Deposit   Co. 

9    N.    E.    R.    615,    56   Am.    R.    852;  v.  Sollitt.  172  111.  222,  50  N.  E.  R. 

r— ]    Blum   V.   Pullman   Palace   Car  178,  64  Am.  St.  R.  35;  [— ]  Springer 

Co.,    1    Flip.    (U.    S.)    500;    Illinois  v.  Ford,   189   III.  430,   59   N.  E.   R. 

Central   Railroad   Co.   v.   Handy,   63  953.   82   Am.   St.   R.   464.     Sec  also 

Miss.  609,  56  Am.  R.  846;   Pullman  the  extended  note  to  77  Am.  St.  R. 

Palace  Car  Co.  v.  Adams,  120  Ala.  26,    contra    Griffen    v.    Manioc.    166 

581,  24  So.  E.  921,  74  Am.  St.  R.  53;  X.  Y.  188,  59  N.  E.  R.  925,  82  Am. 

Woodruff  etc.  Co.  v.  Diehl,  84  Ind.  St.    E.    630;    Burgess   v.    Stowc.    — 

474,  43  Am.  E.  102.  Mi.h.  — ,  96  X.  W.  E.  29. 

Vol 


§§363-364  OF  QUASI-BAILEES. 


(())     Linbility  for  Delay. 

^  363.  Reasonable  diligence  in  beginning,  continuing  and 
ending  the  trHns])ortation  is  tlie  undertaking  of  the  passenger 
carrier.  Xo  liability  is  incurred  by  delays  for  which  there  is 
reasonable  excuse;  carriers  are  not  warrantors  of  speed. 

i'ublished  time-tables  are  public  professions,  and  carriers 
must  make  all  reasonable  effort  to  carry  according  to  their 
schedules.  For  wilful  or  needless  departures  therefrom  the 
carrier  is  liable  to  one  who  incurs  loss  as  a  proximate  result 
of  such  fault  of  the  carrier.  The  test  of  liability  is  negli- 
gence, failing  to  use  due  care  and  skill  to  run  in  conformity 
to  the  time-table.  Changes  in  the  time-table  must  be  given 
the  same  notice  as  the  publication  of  the  table  itself. 

(7)     Liahility  for  Passenger's  Baggage. 

^  364.  Insurers  of  baggage. — As  to  the  passenger's  baggage 
the  carrier  is  a  common  carrier  of  goods,  and  an  insurer 
against  all  losses  but  those  due  to  the  excepted  perils.  The 
payment  of  fare  covers  payment  for  carrying  a  reasonable 
amount  of  baggage.  The  liability  arises  when  the  baggage 
has  been  delivered  to  the  agent  of  the  carrier,  or  if  there  be 
a  custom  to  receive  baggage  left  in  a  certain  place,  depositing 
it  there  at  any  reasonable  time  before  the  departure  of  the 
train  is  enough.     The  liability  of  the  carrier  does  not  depend 

§  363.     Gordon  v.  The  Eailroad,  52  Nowlen,  19  Wend.   (N.  Y.)   234,  32 

N.  H.  596,  13  Am.  K.  97;   Weed  v.  Am.  D.  455;   \—^  Hawkins  v.  Hoff- 

Panama  Railroad  Co.,  17  N.  Y.  362,  man,  6  Hill  (N.  Y.)  586,  41  Am.  D. 

72  Am.  D.  474;    [— ]  Sears  v.  East-  767;    Wilson   v.   Grand   Trunk  Rail- 

ern  Railroad  Co.,  14  Allen   (Mass.)  way  Co.,  56  Me.  60,  96  Am.  D.  435; 

433,  92  Am.  D.  780;  Hurst  v.  Great  Hiekox  v.   Naugatuck   Railroad  Co., 

Western  Railway  Co.,   19  C.  B.    (N.  31    Conn.     281,     83     Am.     D.     143; 

S.)    310,    115   E.   C.   L.   310;    Heirn  [— ]   Goldberg  v.  Ahnapee  &  West- 

V.  McCaughan,  32  Miss.  17,  66  Am.  orn  Railway  Co.,  105  Wis.  1,  80  N. 

D.  588,  and  note;  Georgia  Railroad  \N.    R.    920,    76    Am.    St.    R.    899; 

Co.  V.  Hayden,  71   Ga.  518,  51  Am.  Wright    v.    Caldwell,    3     Mich.     51; 

R.  274;  Walsh  v.  Chicago,  Milwaukee  Green  v.  Milwaukee  &  St.  Paul  Rail- 

&  St.  Paul  Railway  Co.,  42  Wis.  23,  way  Co.,  38  Iowa  100,  41  Iowa  410; 

24  Am.   R.   376;    Carter   v.   Peek,   4  :\[urray   v.    International   Steamship 

Sneed   (Tenn.)   203,  67  Am.  D.  604.  Co.,  170  Mass.  166,  48  N.  E.  R.  1093, 

§  364.     Isaacson     v.     New     York  64  Am.  St.  R.  290 ;   Moore  v,  N.  Y. 

Central  Railroad  Co.,  94  N.  Y.  278,  etc.  Railroad  Co.,  173  Mass.  335,  53 

46   Am.   R.    143;    [— ]    Hollister    v.  N.  E.  R.  816,  73  Am.  St.  R.  298. 

158 


OF  CARRIERS  OF  PASSENGERS. 


§§  365-36G 


iiIH)n  tlic  (l.'livery  or  non-delivery  of  tht-  baggage  check. 
Ainonj^-  several  connectiiifr  carriers  on  the  route  the  same  rules 
and  presumptions  prevail  as  to  liability  for  baggage  as  havt- 
been  already  explained  in  the  case  of  connecting  carriers  of 

goods  (^§  290-299). 

S  365.  What  is  baggage  depends  on  the  j)erson  and  the  con- 
ditions of  the  jouniey.  Whatever  one  carries  for  his  per- 
sonal use,  convenience  or  amusement,  according  to  the  habits 
or  wants  of  the  class  to  which  he  belongs,  for  his  use  on  the 
way  or  for  the  ultimate  purpose  of  the  journey,  is  baggage. 

The  use  must  be  personal  to  the  travel. -r.  and  not  merchan- 
dise or  samples  for  business,  nor  articles  for  permanent  use 
after  he  ceases  to  be  a  traveler.  If  however  the  carrier  know- 
ingly chooses  to  treat  other  goods  as  baggage,  and  to  carry 
them  as  such,  he  Avill  be  responsible  therefor.  The  (piestion  is 
often  one  of  fact  for  the  jury,  to  be  determined  from  all  the 
circumstances  of  the  case. 

§  366.  Value  of  baggage. — The  carrier  is  not  an  insurer  of 
goods  and  money  carried  by  the  traveler  beyond  what  is  rea- 
sonaibly  necessary  for  the  convenience  and  comfort  of  the 
traveler  as  such,  according  to  his  station  in  life.     It  can  not 


§  365.  [— ]  New  York  Central 
Railroad  Co.  v.  Fraloff,  100  U.  S. 
24;  Hauuibal  etc.  Railroad  Co.  v. 
SAvift,  12  Wall.  (U.  S.)  262;  May- 
crow  V.  Great  Western  Railway  Co., 
L.  R.  6  Q.  B.  612;  [— ]  Orange 
County  Bank  v.  Brown,  9  Wend.  (N. 
Y.)  85,  24  Am.  D.  129;  [— ]  Haw- 
kins V.  Hoffman,  6  Hill.  (N.  Y.) 
586,  41  Am.  D.  767;  Oakes  v.  North- 
ern Pacific  Railroad  Co.,  20  Ore.  392, 
26  Pac.  R.  230,  2.3  Am.  St.  R.  126; 
Ouimit  V.  Henshaw,  35  Vt.  605,  84 
Am.  D.  646.  (Compare  Connolly  v. 
Warren,  106  Mass.  146,  8  Am.  R. 
300.)  Coward  v.  East  Tennessee  & 
Georgia  Railroad  Co.,  16  Lea 
(Tenn.)  225,  57  Am.  R.  226;  Dibble 
V.  Brown,  12  Ga.  217,  56  Am.  D. 
460;  Michigan  Central  Railroad  Co. 
V.  Carrow,  73  111.  348,  24  Am.  R. 
248 ;  Toledo  &  Ohio  Central  Railway 
Co.    V.    Bowler    &    Burdiek    Co.,    57 

1 


Ohio  St.  38,  47  N.  E.  R.  1039,  63 
Am.  St.  R.  702;  Kansas  City  etc. 
Railway  Co.  v.  McGahey,  63  Ark. 
344,  38  S.  W.  R.  659,  18  Am.  St. 
R.  Ill;  Bomar  v.  Maxwell,  9 
Humph.  (Tonn.)  620,  51  Am.  D. 
682;  Runyan  v.  Central  Railroad 
Co.,  61  N.  J.  L.  537,  41  Atl.  R.  367, 
68  Am.  St.  R.  711.  Compare  Blu- 
mantle  v.  Fitchburg  Railroad  Co., 
127  Mass.  322,  34  Am.  R.  37f>.  with 
Mintcr  v.  Pacific  Railroad  (  .>.,  41 
Mo.  503,  97  Am.  D.  288. 

§366.     1—1     Orange  County 

Bank  v.  Brown,  9  Wend.  (N.  Y.> 
85,  24  Am.  D.  129;  [  —  1  New  York 
Central  Railroad  Co.  v.  Fraloff.  100 
U.  S.  24;  r— 1  Blum  v.  Pullman 
Palace  Car  Co.,  1  Flip.  (U.  S.)  500; 
Pfister  V.  Central  Pacific  Railroad 
Co.,  70  Cal.  169,  11  Pac.  R.  6S6.  59 
Am.  R.  404;  Michigan  Central  Rail- 
road Co.   V.  ('arrow,   73  III,  34S,  24 

59 


§§367-368  OF  QUASI-BAILEES. 

be  required  to  carry  as  luggage  such  property,  but  may  compel 
the  owner  to  send  it  by  express  or  freight.  If  the  traveler 
Avishes  the  carrier  to  assume  further  liability  he  must  reveal 
the  true  value,  so  that  the  carrier  may  charge  according  to 
the  risk.  The  carrier  of  baggage  unlike  the  carrier  of  goods 
owes  no  duty  to  inquire  as  to  the  contents  of  trunks. 

v$  367.  Custody  of  passenger. — The  carrier  assumes  no  re- 
sponsibility for  money  and  valuables,  not  properly  baggage, 
carried  by  the  passenger  upon  his  person.  And  for  goods  or 
packages  carried  as  hand  baggage  the  carrier  incurs  no  lia- 
oility  except  for  negligence.  Some  cases  hold  the  carrier  to 
Jie  full  common  law  liability  as  insurers  of  articles  retained  by 
the  passenger  for  his  personal  use  upon  the  journey  and  lost 
without  negligence  on  his  part.  But  the  weight  of  authority 
seems  to  hold  the  carrier  to  the  exercise  of  proper  watchful- 
ness only,  and  this  is  especially  required  in  the  case  of  articles 
of  personal  apparel  carried  in  a  berth  in  a  sleeping  car  lost 
while  the  passenger  is  enjoying  the  sleep  to  which  the  carrier 
has  invited  him. 

As  to  ordinary  baggage  the  custody  must  be  surrendered  to 
the  carrier  or  he  is  not  responsible  for  its  loss.  It  would  be 
unreasonable  to  hold  the  carrier  responsible  for  property  never 
entrusted  to  his  custody  at  all. 

^  368.    Passenger  supposed  to  accompany  baggage. — It  is 

Am.    R.    248;    Weeks   v.   New   York  cifie   Eailroad   Co.,   70   Cal.   169,    11 

etc.   Eailroad  Co.,   72  N.  Y.   50,   28  Pac.  E.  686,  59  Am.  E.  404;  Tower 

Am.  E.  104;  Eunyan  V.  Central  Bail-  v.    Utica    etc.   Eailroad   Co.,    7    Hill 

road  Co.,  61   N.  J.  L.  537,  41  Atl.  (N.  Y.)    47,  42   Am.   D.   36;   Lewis 

E.  36r?,  68  Am.  St.  E.   711;   Toledo  v.   New  York  Central   Sleeping  Car 

&  Ohio  Central  Eailway  Co.  v.  Bow-  Co.,  143  Mass.  267,  9  N.  E.  E.  615, 

ler  &  Bnrdick  Co.,   57  Ohio  St.   38,  58  Am.  E.  135 ;    [— ]   Pullman  Pal- 

47   N.   E.   E.   1039,   63   Am.    St.   E.  ace   Car   Co.   v.    Smith,    73   111.   360, 

702.  24  Am.  E.  258 ;  Gleason  v.  Goodrich 

§  367.     [— ]     Kinsley      v.      Lake  Transportation  Co.,   32  Wis.   85,   14 

Shore  &  Michigan  Southern  Eailroad  Am.  E.  716;  Pullman  Palace  Car  Co. 

Co.,  125  Mass.  .54,  28  Am.  E.  200;  v.  Pollock,  69  Tex.  120,  5  S.  W.  E. 

[— ]    Blum   V.   Pullman   Palace   Car  814,   5   Am.   St.   E.   31;   Whicher   v. 

Co.,  1  Flip.    (U.  S.)   500;   Weeks  v.  Boston  &  Albany  Eailroad  Co.,  176 

New  York  etc.  Eailroad  Co.,  72  N.  Mass.    275,    57    N.    E.    E.    601,    79 

Y.   50,    28   Am.   E.    104;    First   Na-  Am.  St.  E.  314;   Woodruff  Sleeping 

tional  Bank  v.  Marietta  &  Cincinnati  etc.    Co.    v.   Diehl,    84    Ind.   474,    43 

Eailroad    Co.,    20    Ohio    St.    259,    5  Am.  E.  102. 

Am.  E,  655;   Pfister  v.  Central  Pa-  §368.     Wilson     v.    Grand    Trunk 

160 


OF  CAERIEKS  OF  P.VSSENGEHS.  §§  369-370 

implied  in  the  ordinary  contract  of  carrias^c  that  tht-  baggage 
and  the  passenger  go  together.  The  earriagc  of  the  baggage 
is  an  incident  to  the  principal  contract  to  carry  the  passenger. 
If  therefore  the  baggage  is  sent  on  another  train  through  the 
carrier's  fault  the  carrier  bears  the  risk,  but  if  the  passenger 
chooses  to  go  by  another  train,  or  carries  luggage  neither 
belonging  to  him  nor  for  his  personal  use  upon  the  journey, 
the  carrier  becomes  a  mere  gratuitous  bailee  as  to  such  bag- 
gage. As  a  matter  of  course  if  the  carrier  consents  to  (rarry 
the  baggage  by  another  route  or  train,  his  liability  romains. 
and  on  the  other  hand  if  baggage  is  sent  without  the  carrier's 
consent  by  one  not  buying  a  ticket  or  paying  for  tlie  carriage 
the  carrier  can  become  liable  only  for  wilful  or  wanton  injury. 

§  369.  Delivery  of  baggage. — The  carrier's  liability  for  the 
baggage  of  the  passenger  continues  imtil  it  is  ready  to  be 
delivered  to  the  passenger  at  his  destination,  and  until  he  has 
had  a  reasonable  opportunity  to  call  for  it  and  take  it  away. 
What  is  such  reasonable  time  depends  upon  circumstances,  but 
usually  it  is  immediately.  The  passenger  can  not  for  his  own 
convenience  prolong  the  period  of  the  extraordinary  lia- 
bility of  the  carrier.  If  the  baggage  is  not  called  for  within 
a  reasonable  time  the  carrier  may  store  it  and  his  liability 
changes  to  that  of  a  warehouseman. 

B.     Of  the  Limitation  of  the  Liability  of  the  Carrier  of  Pas- 
sengers hy  Contract. 

^  370.     As  to  the  baggage  of  the  passenger  the  carrier  may 

by  contract  make  limitations  of  liability  subject  to  the  same 

Railway  Co.,  56  Me.  60,  96  Am.  D.  P.  Railroad  Co.  v.  Boyce,  73  111.  ".10. 
435;  Wald  v.  Pittsburg  etc.  Rail-  24  Am.  R.  268. 
road  Co.,  162  111.  545,  44  N.  E.  R.  §  369.  Roth  v.  Buffalo  et^-.  Rail- 
888,  53  Am.  St.  R.  332;  Beers  v.  road  Co.,  34  X.  Y.  548,  90  Am.  IX 
Boston  etc.  Railroad  Co.,  67  Conn.  736;  [— ]  Chicago,  Rock  Lshind  & 
417,  34  Atl.  R.  541,  52  Am.  St.  R.  Pacific  Railroad  Co.  v.  Boyce,  73  111. 
293';  Isaacson  v.  New  York  Central  510,  24  Am.  R.  268;  Kansas  City 
Railroad  Co.,  94  N.  Y.  278,  46  Am.  etc.  Railway  Co.  v.  McGahey.  63 
R.  142;  Curtis  v.  Delaware,  Lacka-  Ark.  344,  38  S.  W.  K.  659,  58  .\m. 
wanna  &  Western  Railroad  Co.,  74  St.  R.  Ill;  Ditman  B-.ot  &  Shoe  Co. 
N.  Y.  116,  30  Am.  R.  271;  Coward  v.  Keokuk  &  Western  Railroad  Co., 
V.  East  Tennessee  &  Georgia  Rail-  'M  Iowa  416,  59  X.  W.  R.  257,  51 
road  Co.,  16  Lea  (Tenn.)  225,  57  Am.  St.  R.  352;  Onimit  v.  Hen- 
Am.  R.  226;    [-]    Chicago,  R.  I.  &  ^liaw,  3.3   Vt,  605,.   84   -Vm.    I>.   646: 


§§  371-372 


OF   QUASI-BAILEKS. 


rules  as  carriers  of  goods  generally  (see  chapter  12).  But 
conditions  limiting  the  liability  for  baggage  which  are  printed 
on  the  passenger's  ticket  are  of  no  force  unless  brought  to  the 
notice  of  the  passenger  and  expressly  or  impliedly  assented  to 
by  him. 

§  371.  As  to  the  passenger,  it  is  doubtful  if  the  carrier  in 
most  states  can  by  contract  secure  exemption  from  the  full 
care  demanded  by  law.  It  is  public  policy  and  not  contract 
that  requires  the  security  of  the  passenger  "as  far  as  hiunan 
care  and  foresight  Avill  go,"  and  no  individual  can  excuse  the 
carrier.  The  states  that  allow  the  carrier  of  goods  to  con- 
tract within  certain  limits  against  liability  for  negligence 
apply  the  same  rules  to  passenger  carriers  but  with  perhaps 
greater  caution  and  stricter  construction. 

§372.  Gratuitous  passengers.— A  number  of  states  uphold 
contracts  exempting  carriers  from  liability  for  injuries  to 
passengers  traveling  on  a  pass  but  the  weight  of  authority  is 
that  no  distinction  is  to  be  taken  betwen  such  passengers,  pas- 


Fairfax  V.  New  York  Central  Eail- 
road  Co.,  73  N.  Y.  167,  29  Am.  E. 
1]9. 

§  370.  Coward  v.  East  Tennessee 
&  Georgia  Railroad  Co.,  16  Lea 
(Tenu.)  225,  57  Am.  E.  226;  Cam- 
den &  Amboy  Eailroad  Co.  v.  Bal- 
dauf,  16  Pa.  St.  67,  55  Am.  D.  481 ; 
Louisville,  New  Albany  &  Chicago 
Eailway  Co.  v.  Nieholai,  4  Ind.  App. 
119,  30  N.  E.  E.  424,  51  Am.  St.  E. 
206;  [ — ]  Eanchau  v.  Eutland  Eail- 
road Co.,  71  Vt.  142,  43  Atl.  E.  11, 
76  Am.  St.  E.  761;  Kansas  City 
etc.  Eailroad  Co.  v.  Eodebaugh,  38 
Kan.  45,  15  Pac.  E.  899,  5  Am.  St. 
E.  715,  and  note,  ante,  sec.  266. 

§  371.  [— ]  Eailroad  v.  Lock- 
wood,  17  Wall.  (U.  S.)  357; 
1 — 1  Williams  v.  Oregon  Short  Line 
Eailroad  Co.,  18  Utah  210,  54  Pac. 
R.  991.  72  Am.  St.  E.  777; 
[— ]  Doyle  V.  Fitehburg  etc.  Eail- 
road Co.,  166  Mass.  492,  44  N.  E. 
E.  611,  55  Am.  St.  E.  417;  Eussell 
V.  Pittsburg  etc.  Eailway   Co,,   157 


Ind.  305,  61  N.  E.  E.  678,  87  Am. 
St.  E.  214;  Illinois  Central  Eailroad 
Co.  V.  Beebe,  174  111.  13,  50  N.  E. 
E.  1019,  66  Am.  St.  E.  253;  Sey- 
bolt  V.  New  York,  Lake  Erie  &  West- 
ern Eailroad  Co.,  95  N.  Y.  562,  47 
Am.  E.  75 ;  Bissel  v.  New  York  Cen- 
tral Eailroad  Co.,  25  N.  Y.  442,  82 
Am.  D.  369. 

§  372.  Griswold  v.  New  York  & 
New  England  Eailroad  Co.,  53 
Conn.  371,  4  Atl.  E.  261,  55  Am.  E. 
115;  Ulrich  v.  New  York  Central 
Eailroad  Co.,  108  N.  Y.  80,  15  N. 
E.  E.  60,  2  Am.  St.  E.  369;  Bissel 
V.  New  York  Central  Eailroad  Co., 
25  N.  Y.  442,  82  Am.  D.  369; 
[ — ]  Doyle  V.  Fitehburg  Eailroad 
Co.,  166  Mass.  492,  44  N.  E.  E. 
611,  55  Am.  St.  E.  417;  Eussell  v. 
Pittsburg  etc.  Eailroad  Co.,  157  Ind. 
305,  61  N.  E.  E.  678,  87  Am.  St. 
E.  214 ;  [ — ]  Williams  v.  Oregon 
Short  Line  Eailroad  Co.,  18  Utah 
210,  54  Pac.  E.  991,  72  Am.  St.  E. 
777 ;  Baltimore  &  Ohio  etc.  Eailway 


]62 


OF  CARRIERS  OV  PASSENGERS.  §§  373-374 

sengers  riding  on  reduced  rates  ami  passengers  paying  full 
fare.  The  law  imposes  the  same  duty  to  protect  life  and  limb 
in  all  cases. 

An  exception  is  to  be  noticed  in  tin-  case  of  persons  whom 
the  railway  company  is  under  no  obligation  to  carry,  such 
as  express  messengers,  mail  clerks  and  parlor  car  porters.  Ah 
no  duty  to  carry  such  persons  exists,  the  carrier  may  refuse 
to  undertake  the  carriage  except  upon  its  own  terms.  Persons 
accompanying  stock  and  riding  on  a  drover's  pass  arc  not 
gratuitous  passengers,  but  passengers  for  hire. 

(3)     Termination  of  Ihc  Relation. 

§  373.     How  terminated. — A  contract  of  carriage  may  be 

(1)  Fully  executed,  or 

(2)  Left  incomplete,  because 

a.  The  passenger  has  abandoned  the  journey,  or 

b.  The   carrier  has   ejected   the   passenger    from    his 
vehicle. 

(1)     Contract  to  Carry  Fully  Executed. 

§374.    When    carrier's    relation    ends. — "The    carrier    is 

bound  to  exercise  the  strictest  vigilance  not  only  in  carrying 
passengers  to  their  destination  but  in  setting  them  down  safely 

Co.  V.  Voigt,  176  U.  S.  498;  Peter-  Ark.  519,  40  Am.  R.  lO.-j;  Lambeth 
son  V.  Chicago  &  Northwestern  Rail-  v.  North  Carolina  Railroad  Co.,  66 
way  Co.,  —  Wis.  — ,  96  N.  W.  R.  N.  C.  494,  8  Am.  R.  508;  .Memphis 
532;  [ — ]  Railroad  v.  Lockwood,  17  &  Charleston  Railroad  Co.  v.  Whit- 
Wall.  (U.  S.)  357;  IlUnois  Central  field,  44  Miss.  466,  7  Am.  R.  699; 
Railroad  Co.  v.  Beebe,  174  111.  13,  [— ]  Filer  v.  New  York  Central  Rail- 
50  N.  E,  R.  1019,  66  Am.  St.  R.  road  Co.,  49  N.  Y.  47,  10  Am.  K. 
253,  note  to  61  Am.  St.  R.  89.  327;  Harris  v.  Howe.  74  Tex.  534, 
§  374.  [— ]  Commonwealth  v.  12  S.  W.  R.  224,  15  Am.  St.  R. 
Boston  &  Maine  Railroad  Co.,  129  862;  [— ]  Quimby  v.  Vanderbilt.  17 
Mass.  500,  37  Am.  R.  382;  Hansley  N.  Y.  306,  72  Am.  D.  469;  Illinois 
Jamesville     etc.     Railroad     Co.,  Central  Railroad  Co.  v.  Green,  81  111. 


V. 


115  N.  C.  602,  20  S.  E.  R.  528,  44  19,    25    Am.    R.    255;     Mitchell 

Am.    St.    R.    474;    Terre    Haute    &  Grand  Trunk  Railway  Co.,  51  Mich. 

Indianapolis  Railroad   Co.   v.   Buck.  236,   16   X.   W.   R.   388.   47  Am.   R. 

96     Ind.     346,     49     Am.     R.     168;  566;  Cartwright  v.  Chicago  &  Grand 

f_]    Dodge    V.    Boston     &    Bangor  Trunk    Railway   Co..   52    Mich.   606. 

Steamship    Co.,    148    Mass.    207,    19  IS   X.   W.  R.   380,  50  Am.  R.   274; 

N.   E.  R.   373,  12  Am.   St.   R.   541;  l  — I    Pennsylvania    Kailroad   Co.    v. 

St.   Louis,   Iron  Mountain  &  South-  Aspoll,   23   Pa.   St.   147.  62  Am.   D. 

crn    Railroad    Co.    v.     Cantrell,     37  i'-'.!.     Sec  n,Hr,  sees.  355-35S. 

mi 


i:§  375-:)7G  OF  (^UA-si-hajlees. 

jit  the  end.""  The  earrier  peri'onus  his  full  duty  therefore  by 
carrying  a  passenger  to  his  destination  as  indicated  by  his 
ticket  and  giving  him  suitable  opportunity  to  alight  in  a  proper 
place.  An  invitation  by  the  carrier  to  the  passenger  to  alight 
without  allowing  a  reasonable  time,  or  ait'ording  a  safe  place 
subjects  the  carrier  to  liability  for  injurious  consequences; 
but  the  passenger  alone  is  responsible  for  the  results  of  his 
contributory  negligence.  Harm  which  one  brings  upqn  him- 
self is  treated  so  far  as  others  are  concerned  as  though  not 
received  at  all. 

If  the  carrier  contracts  for  only  a  portion  of  the  route  his 
duty  is  completed  by  carrying  the  passenger  to  the  point  on 
his  line  where  the  transfer  is  to  be  made  to  a  connecting  car- 
rier's line. 

(2)     Contract  to  Carry  left  Incomplete. 

§  375.  (a)  The  passenger  may  leave  the  conveyance,  with 
intent  to  abandon  the  journey,  at  any  time.  If  he  does  he 
ceases  to  be  a  passenger  though  he  may  intend  to  resume  the 
journey  by  a  later  train.  Leaving  for  a  temporary  purpose 
however  does  not  affect  the  relation,  nor  does  one  cease  to  be 
a  passenger  while  traveling  from  one  train  to  another  in  the 
prosecution  of  the  journey.  But  one  stepping  from  a  street 
car  to  the  public  highway  ordinarily  ceases  to  be  a  passenger 
even  while  traveling  to  another  car.  The  highway  is  not  a 
passenger  station. 

5  376.  (b)  The  carrier  may  eject  the  passenger  before  the 
journey's  end,  as  already  noted,  for  failure  to  pay  fare,  or 
for  breach  of  the  carrier's  reasonable  regulations,  and  the 
carrier  is  not  again  obliged  to  receive  the  passenger. 

§375.      [— ]     Dodge  v.  Boston  &  500,   37  Am.  E.   383;   Stone  v.   Clii- 

Bangor    Steamship    Co.,    148    Mass.  cage  &  jSTorthwestern  Railway  Co.,  47 

207,  19  N.  E.  E.  373,  12  Am.  St.  E.  Iowa  82,   29  Am.   E.  458;    Creamer 

541 ;    Parsons  v.  New  York  Central  v.    West    End    Street    Eailway    Co., 

Eailroad  Co.,  113  N.  Y.  355,  21  N.  156  Mass.  320,  31  N.  E.  E.  391,  32 

E.    E.    145,    10    Am.     St.    E.     450;  Am.    St.    E.    456.        But    compare 

Nortlirup  v.  Eailway  Passenger  As-  Keator  v.  Traction  Co.,  191  Pa.  St. 

suranee  Co.,  43  N.  Y.  516,  3  Am.  E.  102,  43  Atl.  E.  86,  71  Am.  St.  758. 

724;    [ — ]   Commonwealth  v.  Boston  §376.     Ante,  sec.  343. 
&    Maine    Railroad    Co.,    129    Mass. 


164 


OF    QUASI-BAILEES. 

CHAPTER    W. 
OF  OTHER  C'ARKTEKS. 


(3.)     Duty   to  HtTvo  all  im- 
partially. 

(4.)     Duty   to   provide  ade- 
quate facilities. 

(5.)     Liability  for  miiitakeH 
in  transmission. 

Liinitinfj     liability      for 

ncglifjiMice  by  »'ontra<-t. 

(G.)      Liability  for  delay  or 
failure  to  deliver. 

3.     Termination    of    the    re- 
lation. 

Delivery  where. 

Delivery  to  whom. 

Delivery  to  connecting  lino!«. 

Telephone  companirs. 
3t>9.     Telegraph      and       telephone 
companies      alike      qmisi- 
piil)lic. 

Not    common    carriers. 

Duty    to    s.i\.'    all     impar- 
tially. 

Patent     sub.jct      t..     jmblie 
control. 

Right    to    regulate    charge*. 

§  377.  Carriers  of  mail  and  of  intelligence.— In  ;HKliti<Mi  to 
the  carriers  of  passengers,  considered  in  tlu'  last  chapter.  th.T<' 
remain  for  notice  the  post  office  as  a  cai-rier  of  mail,  aiul 
telegraph  and  telephone  companies  as  carri.Ts  of  intelligcnc-. 
Such  companies,  by  the  clear  weight  of  Miithority.  are  not 
common  carriers,  nor  even  bailees  for  hiiv.  and  yet  they  .'X.-r- 
cise  a  public  calling  and  perform  dnti.-s  nearly  resembhng 
those  of  common  carriers.     They  are  in  sliort  <iuasi-bailees. 

165 


377. 

(/'arriers  of  mail  and  intelli- 
gence. 

§  391. 

Post  Office  Department. 

392. 

378. 

Not  properly  a  bailee. 

379. 

Contractors      for      carrying 
mail. 

393. 

380. 

Postmasters. 

Telegraph  companies  as  car- 

394. 

riers  of  intelligence. 

39.5. 

38L 

Definition. 

1.     Nature  of   the  relation. 

382. 

Public    calling. 

383. 

Not  common  carriers. 

396. 

384. 

Are  quasi-bailees. 

397. 

2.     Eights  and  duties  of  tel- 

39S. 

egraph   companies  as  car- 

riers. 

399. 

385. 

Classification. 

386. 

(1.)     Eight      to     compensa- 

tion. 

400. 

387. 

Discrimination. 

401. 

388. 

(2.)     Eight    to    make    rules 

and  regulations. 

389. 

Notice  of  rules. 

•1(t2. 

390. 

What   rules   are   reason- 

able. 

403. 

§§378-381  OF  QUASI  BAILEES. 

Post  Office  Department. 

§  378.  Not  properly  a  bailee.— The  government  as  a  carrier 
of  the  mails  has  been  said  to  be  a  bailee  for  hire,  and  is  cer- 
tainly a  public,  or  common,  rather  than  a  private  carrier. 
But  while  its  undertakings  are  in  their  nature  like  those  of 
common  carriers  yet  the  government  incurs  no  liability,  since 
it  can  not  be  sued  except  by  its  own  consent  and  consequently 
the  courts  can  have  no  occasion  to  lay  down  any  rules  of 
liability.  It  seems  more  in  accord  with  the  facts  therefore 
to  consider  the  post  office  department  and  its  employees  and 
officers  as  quasi-bailees. 

§  379.  Contractors  for  carrying  mail  are  employees  of  the 
government,  and  between  them  and  those  sending  matter  by 
mail  there  is  no  privity,  no  relation  of  bailor  and  bailee.  The 
contractor  for  the  performance  of  his  duty  as  carrier  is  respon- 
sible to  the  government  alone. 

§  380.  Postmasters  also  are  government  employees,  and  in 
general  are  responsible  to  the  Post  Office  Department  alone. 
For  personal  negligence  resulting  in  loss  to  a  private  person 
they  may  be  liable  to  such  person. 

All  deputies  and  employees  appointed  by  postmasters  by 
authority  of  law  are  government  employees.  The  postmaster 
is  not  liable  for  their  misfeasance  unless  he  was  negligent  in 
selecting  them.  For  the  acts  of  persons  privately  employed 
by  him  to  do  his  work  he  is  of  course  liable  as  for  his  own 
negligence. 

Telegraph  Companies  as  Carriers  of  InteUigencc. 

I  381.     Definition. — Telegraph  and  telephone  companies  or- 

§  378.     But   compare   Schouler   on  Coleman  v.  Frazier,  4  Eich.  L.    (S. 

Bailments   and   Carriers,    265-272.  C.)   146,  53  Am.  D.  727;    [— ]   Fos- 

§  379.     Sawyer  v.  Corse,  17  Grat.  ter  v.  Metts,  55  Miss.  77,  30  Am.  E. 

(Va.)   230,  94  Am.  D.  445;   Hutch-  504;     Keenan    v.     Southworth,     110 

ins   V.   Brackett,   22   N.   H.   252,    53  Mass.  474,   14  Am.  E.  613;   Eaisler 

Am.  D.  248;    [— ]   Foster  v.   Metts,  v.    Oliver,    97   Ala.    710,    12    So.    R. 

55  Miss.  77,  30  Am.  E.  504;  Central  238,  38  Am.  St.  E.  213. 
Eailroafl  &  Banking  Co.  v.  Lampley,  §  381.     [— ]     Mentzer     v.     West- 

76   Ala.   357,   52   Am.  E.   334.  em   Union   Telegraph   Co.,   93   Iowa 

§  380.     Lane     v.     Cotton,     1     Ld.  752,  62  N.  W.  E.  1,  57  Am.  St.  E. 

Bay.     646;     Sawyer    v.     Corse,     17  294. 
Grat.    (Va.)    230,   94   Am.   D.   445; 

166 


OF  TELEGRAPH  COMPANIES.  §§382-383 

ganized  to  serve  the  public  by  furnishing  an  apparatus  for 
conveying  intellio-ence  to  a  distance  by  means  of  electricity 
stand  in  practically  the  same  relation  to  the  public  and  are 
subject  to  almost  the  same  regulations  in  performing  their 
quasi-public  functions.  However  the  manner  of  conveying 
intellioence  by  telephone  differs  from  that  by  telegraph  ko 
far  that  in  many  respects  their  liabilities  differ  in  kind 
though  not  in  amount.  It  serves  the  present  purpose*  there- 
fore to  first  consider  the  telegraph  company,  and  then  give 
attention  to  telephone  companies  in  so  far  as  they  call  f(»r 
separate  mention. 

1.    Naturr  of  fjir  Brhifion. 

§  382.  Public  calling". — Telegraph  companies  exercise  a 
public  employment;  they  are  chartered  foi-  a  public  j)urpos.'. 
are  granted  extraordinary^  powers  including  that  **'(  <'min<MJt 
domain;  they  offer  their  skill  and  peculiar  facilities  to  all  who 
have  occasion  to  use  them;  in  consequfnce  of  these  extraor- 
dinary privileges  and  this  public  holdinir  out  they  owe  the 
public  and  those  who  employ  them  important  services  which 
can  not  be  ignored  or  avoided.  They  stand  in  the  position 
of  those  engaged  in  public  callings. 

§  383.  Not  common  carriers. — In  some  early  eases  they 
were  called  common  carriers  of  news,  and  in  several  states 
they  are  now  by  statute  declared  to  be  common  carriers.  But 
apart  from  statute  they  are  at  present  nowhere  regarded  as 

§382.  Western  Union  Telegraph  Tex.  2S.3,  44  Am.  R.  589; 
Co.  V.  Pendleton,  122  U.  S.  347,  7  |— ]  Webbe  v.  Wostoni  Union  Tele- 
Sup.  Ct.  1126;  [— )  Telegraph  graph  Co.,  169  HI.  610.  48  N.  E.  R. 
Co.  V.  Griswold,  37  Ohio  St.  301,  670,  61  Am.  St.  R.  207. 
41  Am.  R.  500 ;  [— ]  True  v.  In-  §  383.  Parks  v.  Alta  California 
ternational  Telegraph  Co.,  60  Me.  Telegraph  Co.,  13  Cal.  423,  73  Am. 
9,  11  Am.  R.  156;  Gray  v.  Western  D.  589.  (Compare  Hurt  v.  Wesf- 
Union  Telegraph  Co.,  87  Ga.  350,  em  Union  Telegraph  Co.,  66  Cnl. 
13  S.  E.  R.  562,  27  Am.  St.  R.  259;  579.  6  Pac.  R.  637.  56  Am.  R.  119.) 
Tyler  v.  Western  Union  Telegraph  Kirby  v.  Western  Union  Telegraph 
Co.,  60  111.  421,  14  Am.  R.  38;  Smith  Co.,  4  S.  Dak.  105,  .55  N.  W.  R.  759. 
V.  Western  Union  Telegraph  Co.,  83  46  Am.  St.  R.  765;  Pacific  Tele- 
Ky.  104,  4  Am.  St.  R.  126;  graph  Co.  v.  Underwood.  37  Neb. 
[_]  Ayer  v.  Western  Union  Tele-  315,  55  N.  W.  R.  1057.  40  Am.  St.  R. 
graph  Co.,  79  Me.  493,  10  Atl.  R.  490;  State  v.  Citizens'  Telephone 
495,  1  Am.  St.  R.  353;  Western  Co.,  61  S.  C.  83,  39  S.  E.  R.  257. 
Union    Telegraph    Co.    v.    Neill,    57  85  Am.  St.  R.  870;  Leonard  v.  N>w 

167 


e  334  OF  QUASI -BAILEES. 

coiiimoii  carriers  to  the  extent  that  they  are  insurers  against 
mistakes  in  transmitting  messages.  The  instrumentalities  by 
which  they  perform  their  service  are  subject  to  danger  from 
accident,  atmospheric  conditions  and  the  malice  of  strangers; 
and  they  have  no  such  immediate  custody  of  the  message  as  the 
common  carrier  has  of  the  goods  he  carries. 

They  have  in  other  cases  been  spoken  of  as  bailees  for  hire 
bound  to  exercise  ordinary  care.  But  they  receive  nothing 
tangible  to  carry,  and  as  will  appear  are  held  to  more  than 
ordinary  care. 

§384.  Are  quasi-bailees.— But  the  nature  of  their  under- 
taking is  closely  analogous  to  that  of  common  carriers.  The 
one  transports  to  a  distance  the  contents  of  a  letter,  the  other 
transports  a  package,  and  both  perform  the  service  in  the 
exercise  of  a  public  calling.  Though  their  duties  differ  yet 
their  profession,  liability  and  legal  status  are  practically  the 
same  as  those  of  carriers  of  passengers. 

It  is  natural  therefore  that  most  of  the  rules  of  law  gov- 
erning telegraph  companies  should  be  adaptations  of  the  law 
of  carriers  already  noticed.  But  the  law  of  electricity  is  of 
such  recent  growth  and  the  likenesses  and  differences  of  com- 
mon carriers  and  telegraph  companies  have  been  so  variously 
emphasized    in    different    jurisdictions,    that    on    many    points 

York   etc.   Telegraph   Co.   41    N.   Y.  §  384.      GilUs    v.    Western    Union 
544,  1  Am.  K.  446 ;   [—1   Grinnell  v.  Telegraph   Co.,  61  Vt.  461,   17  Atl 
Western   Union   Telegraph   Co.,   113  K.  736,  15  Am.  St.  E.  917;   [— ]  Tel 
Mass.  299, 18  Am.  K.  485 ;  [— ]   Ment-  egraph    Co.    v.    Gris-nokl,    37    Ohio 
zer  V.  Western  Union  Telegraph  Co.,  St.  301,  41  Am.  R.  500 ;  Express  Co 
93  la.  752,  62  N.  W.  R.  1,  57  Am.  v.  Caldwell,   21  Wall.    (U.   S.)    264 
St.  R.  294;  Smith  v.  Western  Union  Western    Union    Telegraph    Co.    v 
Telegraph   Co.,   83  Ky.   104,  4  Am.  Reynolds,    77    Va.    173,    46   Am.    E 
St.    R.    126;    Birney   v.    New    York  715;   Western  Union  Telegraph  Co 
etc.  Telegraph  Co.,   18   Md.  341,   81  v.  Call  Co.,  44  Neb.  326,  62  N.  W, 
Am.  D.  607;    [— ]   True  v.  Interna-  R.     506,     48     Am.     St.     R.      729; 
tional  Telegraph  Co.,  60   Me.   9,   11  [— ]     True    v.    International    Tele- 
Am.  R.  156;  Tyler  v.  Western  Union  graph  Co.,  60  Me.  9,  11  Am.  R.  156; 
Telegraph  Co.,  60   111.  421,   14  Am.  Western    Union    Telegraph    Co.    v. 
R.  38;  Western  Union  Telegraph  Co.  Neill,  57  Tex.  283,  44  Am.  R.  589; 
V.  Reynolds,  77  Va.  173,  46  Am.  R.  Smith  v.  Western  Union  Telegraph 
715;    Reed  v.  Western  Union   Tele-  Co.,  83  Ky.  104,  4  Am.  St.  R.  126; 
graph  Co.,  135  Mo.  661,  37  S.  W.  R.  I—]   Mentzer  v.  Western  Union  Tel- 
904,  58  Am.  St.  R.  609;    [— ]   Tele-  egraph  Co.,  93  la.  752,  62  N.  W.  R. 
graph  Co.  v.  Griswold,   37  Ohio  St.  1,  57  Am.  St.  R.  294, 
301,  41  Am.  R.  500. 

168 


OF  TELEGEAPH  COMPANIES.  ||  385.387 

decisions  are  in  conflict,  on  others  confusion  reigns,  and  the 
law  of  electricity  as  a  whole  may  well  be  regarded  as  still  in 
process  of  formation. 

2.    The  Eights  and  Duties  of  Telegraph  Companies  as  Carriers. 
§  385.     The  rights   and  duties   of  telegraph   companies  to, 
carriers  may  be  conveniently  considered  und.T  the  following 
heads : 

(1)  Right  to  compensation. 

(2)  Right  to  make  reasonable  rules  and  regulations. 

(3)  Duty  to  serve  all  indiscriminately. 

(4)  Duty  to  furnish  facilities. 

(5)  Liability  for  mistakes  in  transmission. 

(6)  Liability  for  delay  or  failure  to  deliver. 

§386.  (1)  Right  to  compensation.— As  a  matter  of 
course  the  telegraph  company  can  not  be  compelled  to  per- 
form its  service  without  reasonable  compensation  and  it  may 
demand  payment  before  it  undertakes  the  service,  or  by  un- 
dertaking without  prepayment  it  may  waive  that  right,  and 
then  it  cannot  collect  until  the  service  has  been  performed. 
The  compensation  may  be  graduated  to  the  service  rendered, 
the  rates  having  relation  to  the  length  of  the  message  and  the 
distance  it  is  carried,  and  more  may  be  charged  for  tlay  than 
for  night  messages,  for  messages  that  are  repeated  t«»  insur.- 
correct  transmission  than  for  unrepeated  messages. 

§  387.  Discrimination. — But  having  devoted  its  prop- 
erty to  a  public  use  the  telgraph  company  nuist  serve  the 
public  impartially.  It  must,  unless  there  be  a  reasonable 
ground  of  discrimination,  serve  all  persons  alike  upon  their 

§386.     Western  Union  Telegraph  -  Me.  493,  10  At).  R.  495,   1   .\in.  St. 

Co.    V.    Call    Co.,    44    Neb.    326,    62  R.  353. 

N.  W.  E.  506,  48  Am.  St.  R.  729;  §387.     Western  Union   Telegraph 

[_]    Western  Union   Telegraph  Co.  Co.  v.  Call  Co.,  44  Neb.  326,  62  N. 

V.    Van    Cleave,    107    Ky.    464,    54  W.  R.  506,  48  Am.  St.  R.  729;  Inter- 

S.  W.  R.   827,   92  Am.   St.  E.   366;  Oeean  Publishing  Co.  v.  Assooiated 

Western    Union    Telegraph    Co.    v.  Press,    184    111.    438,    56    N.    E.    R. 

Moore,  12  Ind.  App.  136,  39  N.  E.  822,  75  Am.  St.  R.  184;  Commercial 

R.   874,   54  Am.   St.   R.   515;   Kirby  Union   Telegraph   Co.   v.  New   Eng- 

V.    Western    Union    Telegraph    Co.,  land  Telephone  &  Telegraph  Co.,  61 

4   S.    Dak.   105,   55   N.   W.   R.    759,  Vt.   241,    17   Atl.    R.    1071,    If.   Am. 

46   Am.   St.   R.    765;    [—1    Ayer   v.  St.  R.  893;   f— ]  Leavell  v.  Western 

Western    Union    Telegraph    Co.,    79  Union  Telegraph  Co.,  116  N.  C.  211. 

21  S.  E.  R.  391,  47  .\m.  St.  K.  798. 

169 


§§  388-389  OF  QUASI-BAILEES. 

tender  of  equal  pay  for  equal  services  and  must  not  render  to 
one  service  at  a  less  rate  than  to  another  where  such  dis- 
crimination operates  to  the  disadvantage  of  the  other.  By 
the  better  opinion  a  discrimination  based  merely  on  the  quan- 
tity of  business  offered  is  unjust,  tends  to  create  a  monopoly 
and  destroy  competition,  and  is  therefore  contrary  to  public 
policy.  But  it  is  not  unjust  discrimination  to  make  a  dif- 
ference in  rates  based  on  the  expense  and  difficulty  of  per- 
forming the  service. 

i;  388.  (2)  Right  to  make  rules  and  regulations. — "That 
telegrajjh  companies  may  make  all  proper  and  needful  rules  to 
enable  them  with  convenience  and  dispatch  to  do  the  business 
of  their  customers  is  now  unquestioned."  Such  rules  how- 
ever by  reason  of  the  quasi-public  character  of  telegraph  com- 
panies the  law  requires  to  be  "reasonable  in  view  of  all  the 
circumstances,  and  of  the  nature  of  the  business,  its  risks 
and  responsibilities,  the  necessity  of  securing  to  the  public 
a  reasonable  protection  against  neglect  or  fraud  or  want  of  due 
care  and  effort,  to  perform  punctually  and  correctly  the  acts 
undertaken."  Not  only  must  the  rules  be  reasonable,  but  they 
must  be  reasonably  applied  in  every  case.  Of  the  reasonable- 
ness of  any  rule  the  court  and  not  the  company  is  the  judge. 

§  389.     Notice     of     rules. — Regulations     affecting     the 

rights  of  the  sender  are  not  binding  unless  brought  home  to 
his  knowledge.  His  assent  to  mere  regulations  is  not  neces- 
sary, though  it  is  otherwise  as  to  stipulations  affecting  his 

§  388.     Bartlett  v.  Western  Union  Co.  v.  Keynolds,  77  Va.  173,  46  Am. 

Telegraph  Co.,  62  Me.  209,  16  Am.  K.    715;    Harris    v.    Western   Union 

E.  437;    [— ]    True  v.  International  Telegraph    Co.,    121    Ala.    519,    25 

Telegraph  Co.,  60  Me.  9,  11  Am.  E.  So.  E.  910,   77  Am.  St.  E.  70;  Ex- 

156;   [ — ]  Western  Union  Telegraph  press  Company  v.  Caldwell,  21  Wall. 

Co.    V.    Van    Cleave,    107    Ky.    464,  (U.    S.)    264;    Bartlett    v.    Western 

54  S.  W.  E.  827,  92  Am.  St.  E.  366;  Union    Telegraph   Co.,    62    Me.   209, 

Western    Union    Telegraph    Co.    v.  16    Am.    E.    437;     [ — ]     Webbe    v. 

Moore,  12  Ind.  App.  136,  39  N.  E.  Western  Union   Telegraph   Co.,   169 

E.  874,  54  Am.  St.  E.  515 ;  Western  111.   610,   48   N.   E.  E.   670,   61   Am. 

Union    Telegraph    Co.    v.    Eeynolds,  St.  E.  207  and  extended  note;  Hend- 

77  Va.  173,  46  Am.  E.  715;  Tele-  rieks  v.  Western  Union  Telegraph 
phone  Co.  v.  Brown,   104  Tenn.   56,  Co.,   126   N.   C.   304,   78  Am.   St.  E. 

78  Am.  St.  E.  906.  658;    Telephone   Co.   v.   Brown,    104 
§  389.      Breece    v.    United    States      Tenn.  56,  78  Am.  St.  E.  906 ;   Hill 

Telegraph  Co.,  48  N.  Y.  132,  8  Am.  v.  Western  Union  Telegraph  Co., 
R.   526;    Western   Union    Telegraph      85  Ga.  425,  11  S.  E.  E.  874,  21  Am. 

170 


OF  TELEGRAPH  COMPANIES. 


§390 


contract  relations  with  the  company.  The  same  considerations 
control  the  contract  rights  against  the  company  of  the  sendee 
of  the  message,  but  he  is  not  bound  in  a  tort  action  by  regula- 
tions assented  to  by  the  sender  of  which  he  had  no  notice. 

These  regulations  are  usually  printed  on  blanks  on  whi<-h  the 
sender  is  required  to  write  his  message.  A  party  using  such 
a  blank  assents  to  its  terms  so  far  as  they  are  reasonable, 
whether  he  knows  them  or  not.  An  omission  to  infornj  liini- 
self  of  the  rules  with  full  opportunity  to  do  so  is  his  own 
fault.  But  a  rule  made  without  notice,  and  not  observed  by 
the  company  itself,  can  not  avail,  and  if  the  company  waives 
its  rules  it  can  not  plead  them  in  defence. 


§390. 


-What  regulations  are  reasonable. — It  is  almost 


universal  to  include  among  the  rules  printed  on  telegraph 
blanks  conditions  under  which  the  company  luidcrtakes  to 
perform  the  service.  Such  are  the  offer  of  half  rates  for 
night  messages  on  condition  that  the  company  shall  be  freed 


St.  E.  166.  As  to  the  necessity  of 
knowledge  compare  the  rule  in 
United  States  Telegraph  Co.  v.  Gil- 
dersleeve,  29  Md.  232,  96  Am.  D. 
519,  with  the  general  rule  in  Car- 
land  V.  Western  Union  Telegraph 
Co.,  118  Mich.  369,  76  N.  W.  R. 
762,  74  Am.  St.  R.  394. 

§  390.  The  following  are  cases 
illustrating  regulations  that  have 
been  held  valid:  Breece  v.  United 
States  Telegraph  Co.,  48  N.  Y.  132, 
8  Am.  R.  526;  Western  Union  Tele- 
graph Co.  V.  Reynolds,  77  Va.  173, 
46  Am.  R.  715;  Birkett  v.  Western 
Union  Telegraph  Co.,  103  Mich.  361. 
61  N.  W.  R.  645,  50  Am.  St.  R.  374 ; 
Hill  v.  Western  Union  Telegraph 
Co.,  85  Ga.  425,  11  S.  E.  R.  874, 
21  Am.  St.  R.  166;  [— ]  Western 
Union  Telegraph  Co.  v.  Van  Cleave, 
107  Ky.  464,  54  S.  W.  R.  827,  92 
Am.  St.  R.  366;  Harris  v.  Western 
Union  Telegraph  Co.,  121  Ala,  519, 
25  So.  R.  910,  77  Am.  St.  R.  70; 
Western  Union  Telegraph  Co.  v. 
Henderson,    89    Ala.    510,    7    So.    R. 


419,  18  Am.  St.  R.  148;  McIVck  v. 
Western  Union  Telegraph  Co.,  107 
Iowa  356,  78  N.  W.  R.  63,  70  Am. 
St.  R.  205;  Western  Union  Tele- 
graph Co.  V.  Stevenson,  128  Pa.  St. 
442,  18  Atl.  R.  441,  15  Am.  St.  R. 
687;  Sweetland  v.  Illinois  &  Mis- 
sissippi Telegraph  Co.,  27  Iowa  433, 
1  Am.  R.  285. 

In  the  following  cases  regulation* 
have  been  held  not  binding  on  the 
party  suing  the  company:  Bart- 
lett  V.  Western  Union  Telegraph 
Co.,  62  Me.  209,  16  Am.  R.  437; 
[ — ]  Webbe  v.  Western  Union  Tele- 
graph Co.,  169  111.  610,  48  N.  E.  R. 
670,  61  Am.  St.  R.  207;  [  — ]  True 
V.  International  Telegraph  Co.,  60 
Me.  9,  11  Am.  R.  156;  Western 
Union  Telegraph  Co.  v.  Moore,  12 
Ind.  App.  136,  39  N.  E.  R.  874, 
54  Am.  St.  R.  515;  Western  Union 
Telegraph  Co.  v.  Eubanks.  100  Ky. 
591,  38  S.  W.  R.  106S,  66  Am.  St. 
R.  361.  See  also  note  to  i»2  Am.  St. 
R.   372. 


171 


§  391  OF  QUAST-BAILEES. 

from  liability  for  negligence  as  to  transmission  or  delivery 
of  the  message ;  a  requirement  that  all  claims  be  presented  in 
writing  within  sixty  days;  that  messages  whose  accuracy  in 
transiiiission  is  to  be  guaranteed  shall  be  repeated  at  an 
additional  charge  of  one-half  the  regular  rate;  that  an  extra 
charge  shall  be  paid  for  delivery  outside  the  free  delivery 
limits.  Rules  as  to  hours  of  business  and  conduct  of  the 
office  are  proper,  if  reasonable  in  view  of  the  public  nature 
of  the  business. 

In  passing  upon  the  reasonableness  of  regulations  the  courts 
are  in  hopeless  conflict.  By  the  weight  of  authority  it  is  rea- 
sonable to  require  claims  to  be  filed  in  writing  within  sixty 
days,  but  it  is  unreasonable  to  refuse  responsibility  for  unre- 
peated  messages. 

§  391.  (3)  Duty  to  serve  all  impartially. — It  is  the  duty 
of  telegraph  companies  to  transmit  messages  for  individuals 
and  corporations  faithfully  and  impartially  in  the  order  in 
which  they  are  offered  for  transmission.  All  customers  must 
be  treated  with  the  same  consideration.  The  telegraph  and 
the  telephone  are  "public  vehicles  of  intelligence,  and  they 
who  own  and  control  them  can  no  more  refuse  to  perform 
impartially  the  functions  that  they  have  assumed  to  dis- 
charge than  a  railway  company  as  a  common  carrier  can 
rightfully  refuse  to  perform  its  duty  to  the  public.  They  have 
no  power  to  discriminate  and  while  offering  to  serve  some 
refuse  to  serve  others." 

Neither  can  they  refuse  to  receive  a  dispatch  which  is  free 
from  indecency  and  improper  language  on  account  of  its 
subject  matter,  unless  to  send  it  might  subject  the  company 
to  civil  or  criminal  liability.  To  refuse  such  a  dispatch  is 
not  a  wrong  resting  on  contract,  but  it  grows  out  of  the  duty 

§391.  Chesapeake  etc.  Telephone  St.  E.  109;  Tyler  v.  Western  Union 
Co.  V.  Baltimore  &  Ohio  Telegraph  Telegraph  Co.,  60  111.  421,  14  Am. 
Co.,  66-  Md.  399,  7  Atl.  K.  809,  R.  38;  Gray  v.  Western  Union  Tele- 
.59  Am.  E.  167;  Commercial  Union  graph  Co.,  87  Ga.  350,  13  S.  E.  E. 
Telegraph  Co.  v.  New  England  Tele-  562,  27  Am.  St.  R.  259 ;  [— ]  Lea- 
phone  &  Telegraph  Co.,  61  Vt.  241,  veil  v.  Western  Union  Telegraph 
17  Atl.  E.  1071,  15  Am.  St.  R.  893;  Co.,  116  N.  C.  211,  21  S.  E.  E.  391, 
[— ]  Telegraph  Co.  v.  Griswold,  37  47  Am.  St.  E.  798;  [— ]  Mentzer 
Ohio  St.  301,  41  Am.  E.  500;  West-  v.  Western  Union  Telegraph  Co., 
em  Union  Telegraph  Co.  v.  Dubois,  93  la.  752,  62  N.  W.  E.  1,  57  Am. 
128  111.  248,  21  N.  E.  E.  4,  15  Am.  St.  E.  294. 

172 


OF  TELEGEAPH  COMPANIES.  §§  392-393 

owed  by  a  public  service  eor{)(>ralion  to  render  service  to  all 
indiscriminately. 

§  392.  (4)  Duty  to  provide  adequate  facilities.— Another 
consequence  of  the  public  enq)l(>yi,..-nt  ..l"  ih-  t.-l.--raph  com- 
pany is  its  duty  to  provide  facilities  adequately  to  serve  the 
public.  It  is  the  duty  of  the  company  to  maintain  wires  and 
operators  enough  to  transact  all  the  business  oflVred  it,  for 
all  the  points  at  which  it  has  offices,  but  it  can  not  be  required 
to  furnish  greater  facilities  than  the  volume  of  busine.s.s  rea- 
sonably to  be  expected  at  any  office  justly  demands. 

It  is  also  bound  to  have  suitable  instruments  and  skilled 
operators  and  servants  who  will  render  the  serviec  with  that 
degree  of  diligence  and  skill  which  the  peculiar  nature  of  the 
undertaking  requires.  For  any  failure  due  to  defective  in- 
struments or  unskillful  operators  the  company  is  responsible 
as  it  is  for  the  acts  of  servants  who  are  negligent  or  unfaith- 
ful while  in  the  course  of  their  employment. 

§  393.  (5)  Liability  for  mistakes  in  transmission. — Tin- 
most  important  consequence  of  the  peculiar  natun-  of  the 
profession  and  undertaking  of  the  telegraph  company  and 
of  the  intimate  dependence  of  the  public  upon  the  proper 
fulfillment  of  its  functions  as  a  carrier  of  intelligence,  often 

§392.     [— ]     Leavell   v.    Western  Atl.  K.  29,  6  Am.  8t.  K.  I'll;  TyK-r 

Uuiou  Telegraph  Co.,  116  N.  C.  211,  v.  Western  Union  Telegraph  Co.,  60 

21  S.  E.  E.  391,  47  Am.  St.  E.  798;  111.  421,   14  Am.  B.  38;    [—1   Tcle- 

Birkett  v.  Western  Union  Telegraph  graph  Co.  v.  Griswold,  37  Ohio  St. 

Co.,    103   Mich.    361,    61    N.    W.    E.  301,  41  Am.  E.  500;  Eeed  v.  West- 

645,  50  Am.  St.  E.  374;   [— ]  West-  ern   Union   Telegraph   Co.,    135   Mo. 

ern    Union    Telegraph    Co.    v.    Van  661,  37  S.  W.  E.  904,  58  Am.  St.  R.^ 

Cleave,   107   Ky.   464,   54   S.   W.   E.  609;   Western   Union  Telegrapli  Co.* 

827,   92   Am.   St.   E.    366;    Tyler   v.  v.  Chamblee,  122  Ala.  428.  25  S.  R. 

Western    Union    Telegraph    Co.,    60  232,  82  Am.  St.  E.  89;   [  — 1  Wcbbc 

111.   421,   14  Am.   E.   38;    Fowler   v.  v.    Western    Union    Telegraph    Co., 

Western    Union    Telegraph    Co.,    80  169   111.   610,   48   N.   E.   R.   670.   61 

Me.  381,  15  Atl.  R.  29,  6  Am.  St.  E.  Am.    St.    E.    207;    Western    Union 

211;    Sweetland    v.    Illinois   &    Mis-  Telegraph  Co.  v.   Eubanks,   100  Ky. 

sissippi  Telegraph  Co.,  27  Iowa  433,  591,  38  S.  W.  E.  106S.  66  Am.  St.  R. 

1   Am.  E.   285;   McCord  v.  Western  361;   Western   Union   Tolegniph  Co. 

Union  Telegraph  Co.,  39  Minn.  181,  v.  Xeill.  57  Tex.  2S3,  44  Am.  R.  589; 

39    N.   W.    E.    315,    12    Am.    St.    E.  [—1  Mentzer  v.  Western  Union  To!- 

636.  egraph   Co.,   93   Ta.    752.  62    X.   W. 

§393.     Fowler  v.   Western  Union  E.  1.  57  Am.  St.  E.  294. 
Telegraph     Co.,     80     Me.     381,    15 

17;:! 


1394 


OF  QUASr-BAILEES. 


of  vital  importance  to  the  sender  and  sendee,  is  that  they  are 
held  to  a  rigid  accountability  for  the  negligence  of  their  agents 
and  employees. 

They  are  not  insurers  of  the  safe  and  accurate  transmission 
and  prompt  delivery  of  messages  received  by  them,  but  they 
are  bound  to  perform  their  service  with  a  care  and  diligence 
proportioned  to  their  profession  of  special  skill  and  commen- 
surate with  the  importance  of  the  trust  reposed  in  them. 
Any  failure  to  exercise  such  care  and  skill  is  negligence  for 
which  the  carrier  is  liable,  but  no  responsibility  is  assumed 
for  errors  or  imperfections  arising  from  causes  not  within 
their  control  and  not  capable  of  being  guarded  against. 

g  394.     Limiting  liability  for  negligence  by  contract. — 

Conditions  limiting  the  liability  of  the  company  if  assented 
to  by  the  sender  are  universally  upheld  unless  they  excuse 
from  liability  for  negligence.     But  to  alloAv  the  company  by 


§  394.  Gillis  v.  Western  Union 
Telegraph  Co.,  61  Vt.  461,  17  Atl. 
R.  736,  15  Am.  St.  R.  917; 
[ — ]  Ayer  v.  Western  Union  Tele- 
graph Co.,  79  Me.  493,  10  Atl.  E. 
495,  1  Am.  St.  R.  353;  Bartlett  v. 
Western  Union  Telegraph  Co.,  62 
Me.  209,  16  Am.  E.  437 ;  [— ]  Tele- 
graph Co.  V.  Griswolcl,  37  Ohio  St. 
301,  41  Am.  R.  500;  Express  Com- 
pany V.  Caldwell,  21  Wall.  (U.  S.) 
264;  Western  Union  Telegraph  Co. 
V.  Eubanks,  100  Ky.  591,  88  S.  W. 
R.  1068,  66  Am.  St.  R.  361; 
[ — ]  Webbe  v.  Western  Union  Tele- 
graph Co.,  169  111.  610,  48  N.  E.  R. 
670,  61  Am.  St.  E.  207;  Western 
Union  Telegraph  Co.  v.  Blanchard, 
68  Ga.  299,  45  Am.  R.  480  and  note; 
Pacific  Telegraph  Co.  v.  Underwood, 
37  Neb.  315,  55  N.  W.  R.  1057,  40 
Am.  St.  R.  490;  [— ]  True  v.  Inter- 
national Telegraph  Co.,  60  Me.  9, 
11  Am.  R.  156;  Western  Union  Tele- 
graph Co.  V.  Graham,  1  Colo.  230, 
9  Am.  R.  136;  Smith  v.  Western 
Union  Telegraph  Co.,  83  Ky.  104, 
4  Am.  St.  E.  126;  Manville  v.  West- 
ern  Union    Telegraph   Co.,   37   Iowa 


214,  18  Am.  R.  8;  Sweetland  v. 
Illinois  &  Mississippi  Telegraph  Co., 
27  Iowa  433,  1  Am.  R.  285;  Brown 
V.  Postal  Telegraph  Co.,  Ill  N.  C. 
187,  16  S.  E.  R.  179,  32  Am.  St.  R. 
793  (overruling  89  N.  C.  334); 
Reed  v.  Western  Union  Telegraph 
Co.,  135  Mo.  661,  37  S.  W.  E.  904, 
58  Am.  St.  E.  609  (overruling  37 
:\lo.  472)  ;  Tyler  v.  Western  Union 
Telegraph  Co.,  60  111.  421,  14  Am. 
R.  38 ;  Candee  v.  Western  Union 
Telegraph  Co.,  34  Wis.  471,  17  Am. 
R.  452;  Western  Union  Telegraph 
Jo.  V.  Tyler,  74  111.  168,  24  Am. 
E.  279. 

Contra:  [ — ]  Grinnell  v.  West- 
ern Union  Telegraph  Co.,  113  Mass. 
299,  18  Am.  E.  485;  Birkett  v. 
Western  Union  Telegraph  Co.,  103 
Mich.  361,  61  N.  W.  R.  645,  50  Am. 
St.  E.  374;  Pearsall  v.  Western 
Union  Telegraph  Co.,  124  N.  Y.  256, 
26  N.  E.  E.  534,  21  Am.  St.  E.  662 ; 
Western  Union  Telegraph  Co.  v. 
Xeill,  57  Tex.  283,  44  Am.  E.  589; 
United  States  Telegraph  Co.  v.  Gil- 
dersleve,  29  Md.  232,  96  Am.  D, 
519. 


174 


OF  TELEGEAPll  COMPANIES.  §  395 

Stipulations  on  the  message  blank  or  other  agreement  with 
the  sender  to  eseape  this  rigid  liability  for  negligt-nee  is  bv 
the  weight  of  authority  contrary  to  public  policy,  and  such 
stipulations  demand  unreasonable  concessions  and  are  void. 
AVhile  the  art  of  telegraphy  was  in  its  infancy  and  its  appli- 
ances were  crude,  many  courts  upheld  stipulations  aKaiust 
liability  for  errors  that  have  since  overruled  their  earlier  de- 
cisions and  laid  down  the  more  rigid  rule.  Regulations  ex- 
empting a  carrier  from  liability  for  negligence  are  in  some 
eases  held  to  be  void  for  Avant  of  considerati<.n.  In  some 
states  constitutional  or  statutory  provisions  forbid  contracts 
against  the  liability  for  negligence  of  telegrajdi  eompani.-s. 

Those  states  that  permit  a  common  carrier  to  contract 
against  negligence  (§  269),  naturally  extend  the  same  privi- 
lege to  telegraph  companies.  But  there  are  a  number  of  states 
which  deny  such  immunity  to  common  carriers,  that  havt- 
nevertheless  permitted  telegraph  companies  to  contract 
against  liability  for  negligence  at  least  if  the  acts  causing  the 
injury  did  not  amount  to  gross  negligence,  wilful  misconduct 
or  fraud. 

The  law  of  the  telegraph  is  comparatively  n<-w.  and  is  still 
in  process  of  formation.  The  present  tendency  is  toward 
applying  the  same  principles  in  contracts  against  negligence 
to  carriers  of  intelligence  as  have  been  settled  upon  in  the 
case  of  common  carriers  of  goods  and  of  passengers,  and  it 
is  difficult  to  justify  any  distinction,  though  it  is  still  main- 
tained in  a  few  states. 

§395.     (6)     Liability  for  delay  or  failure  to  deliver.— The 

undertaking  of  the  telegraph  company  is  not  only  to  transmit 
with  reasonable  care  and  dispatch  but  to  (.leliver  the  message 
to  the  sendee  Avithout  neglect  or  unnecessary  delay.     No  dis- 

§  395.     Barnes   v.   Western  Union  AVostem    Union    Telegraph    Co.    v. 

Telegraph  Co.,  24  Nev.  125,  50  Pae.  Eubanks,  100  Ky.  591,  38  S.  W.  R. 

E.     438,      77     Am.      St.     R.      791;  lOGS,   66  Am.   St.   R.   361;    Western 

Western    Union     Telegraph    Co.     v.  Union    Telegraph    Co.    v.    Broescho. 

Moore,      12      Ind.      App.      136,      39  72   Tex.   654,   10  S.   W.   R.   734,   13 

N.     E.     E.     874,     54     Am.     St.     E.  Am.    St.    R.    S4;!;     Western    Union 

515;      [— ]     Harkness     v.     Western  Telegraph  Co.  v.  Hen.lorson,  S9  A!a. 

Union    Telegraph    Co.,    73    la.    190,  510,     7     So.     R.     419,     IS     Am.  St. 

34  N.  W.  R.  811,  5  Am.  St.  E.  672;  E.    14S;    Francis   v.    Western   Union 

Smith  V.  Western  Union   Telegraph  Tclegrapli    Co.,    5S    Minn.     •-V)^.     59 

Co.,  83  Ky.  104,  4  Am.  St.  E.  126;  X.  W.  E.   107S,  49  Am.  St.  R.  507. 

175 


5  396  ^^'  QUASI-BAil^EES. 

tinction  is  to  be  drawn  between  the  duty  to  receive  and  trans- 
mit and  that  to  promptly  deliver  the  message  when  trans- 
mitted. As  speed  is  a  first  consideration  in  communicating 
by  telegraph  it  results  naturally  that  any  negligence  in 
prompt  service  should  be  regarded  as  a  serious  default. 

Though  stipulations  against  liability  for  errors  in  unre- 
peated  messages  have  been  upheld  in  some  of  the  states,  it  is 
universally  conceded  that  such  exemptions  are  no  defence 
against  delay  or  failure  to  deliver  an  unrepeated  message 
unless  the  cause  of  the  delay  would  have  been  removed  by  a 
repetition.  Those  courts  that  deny  the  right  to  stipulate 
against  negligence  in  transmitting  also  deny  the  right  of 
exemption  from  liability  for  negligent  delay. 

8.    Termination  of  the  Belation. 

§  396.  Delivery  where. — The  relation  is  ordinarily  ter- 
minated by  delivery  of  the  message.  Within  free  delivery 
limits  delivery  should  be  made  to  the  addressee  in  person 
wherever  by  reasonable  diligence  he  can  be  found.  It  is  of 
first  importance  that  the  message  should  be  delivered  to  the 
addressee  and  the  place  of  delivery  is  of  minor  importance. 
The  place  to  v/hich  the  message  is  directed  is  but  a  guide  and 
if  the  addressee  can  not  be  found  at  that  address  he  should 
be  sought  at  his  office  or  residence.  In  the  case  of  impor- 
tant telegrams  it  may.be  the  duty  of  the  messenger  to  seek  him 
on  the  street  or  elsewhere  if  there  is  reason  to  suppose  he 
can  be  found.  In  such  a  case  failure  to  use  reasonable  efforts 
to  make  personal  delivery  is  negligence  for  which  the  com- 
pany is  liable. 

If  the  company  undertakes  to  transmit  a  message  to  one 
outside  the  free  delivery  limits  it  must  perform,  but  an  extra 

§396.  Western  Uniou  Telegraph  419,  18  Am.  St.  E.  148  with  West- 
Co.  V.  Houghton,  82  Tex.  561,  17  ern  Union  Telegraph  Co.  v.  Moore, 
S.  W.  E.  846,  27  Am.  St.  E.  918  12  Intl.  App.  136,  39  N.  E.  E. 
and  note;  McPeek  v.  Western  874,  54  Am.  St.  E.  515;  see  also 
Union  Telegraph  Co.,  107  Iowa  356,  [— ]  Western  Union  Telegraph  Co. 
78  N.  W.  E.  63,  70  Am.  St.  E.  205 ;  v.  Mitchell,  91  Tex.  454,  44  S.  W. 
llenilershot  v.  Western  Union  Tel-  E.  274,  66  Am.  St.  E.  906;  West- 
egraph  Co.,  106  la.  529,  76  N.  W.  ern  Union  Telegraph  Co.  v.  Cooper, 
E.  828,  68  Am.  St.  E.  313;  com-  71  Tex.  507,  9  S.  W.  E.  598,  10 
pare  Western  Union  Telegraph  Co.  v.  Am.  St.  E.  772. 
Henaerson,   89   Ala,    510,    7   So,   E. 

J76 


OF  TELEPHONE  COMPANIES.  §§397-399 

charge  may  be  made.  Whether  the  burden  of  knowing 
Avhether  the  sendee  lives  within  such  limits  re.sts  on  the  sender 
or  on  the  company  is  in  dispute.  If  the  sender  fails  to  give 
sufficient  address  his  contributory  negligence  will  prevent  a 
recovery  by  him  for  failure  to  deliver. 

§  397.  Delivery  to  whom.— Delivery  to  the  person  intended 
is  essential  to  the  service  by  the  company,  is  part  of  the  con- 
tract for  transmission.  An  undelivered  message  is  not  trans- 
mitted. In  general  the  delivery  should  be  personal  but  deliv- 
ery to  one  in  whose  care  the  message  is  sent  is  sufficient,  and 
if  the  addressee  is  stopping  at  a  hotel  the  hotel  clerk  is  pre- 
sumed to  be  his  agent  to  receive  the  message.  If  the  addressee 
can  not  be  found  the  sender  should  if  it  is  practicable  be  noti- 
fied that  the  message  can  not  be  delivered. 

§  398.  Delivery  to  connecting  lines. — Telegraph  lines  have 
so  far  consolidated  that  ([uestions  of  liability  as  between  con- 
necting carriers  are  comparatively  rare.  Practically  the  .same 
considerations  as  to  the  duty  to  receive  and  liability  for  loss 
that  have  been  already  noticed  in  discussing  eonneeting  ear- 
riers  of  goods  (§  290  and  the  following)  are  recognized  in  the 
case  of  connecting  telegraph  lines. 

Telephone  Companies. 

§  399.     Telegraph  and  telephone  companies  alike  occupy  a 

(^uasi-public  position  and  for  many  ])urp()ses  the  word  "tel^"- 
graph"  in  a  law  has  been  held  to  include  "telephone,"  and 

§397.        [ — ]        Western      Union  note  and  cases  cited;  Telephone  Co. 

Telegraph   Co.   v.    Mitchell,   91   Tex.  v.  Brown,  104  Tenn.  56,  78  Am.  St. 

454,  44  S.   W.   R.   274,   66  Am.   St.  R.  906. 

E.   906;    Western    Union   Telegraph  §399.     [— ]     Central   Union    Tcl- 

Co.   V.   Houghton,    82    Tex.    561,    17  ephone  Co.  v.  Falley,  118  Ind.   194, 

S.   W.  E.   846,   27   Am.   St.   E.   918,  20  N.  E.  R.  145,  10  Am.  St.  R.  114, 

note;  Western  Union  Telegraph  Co.  and    extended    note;    State    v.    Citi- 

V.  Young,  77  Tex.  245,  13  S.  W.  R.  zens'   Telephone   Co.,    61    S.   C.    83, 

985,   19  Am.  St.  R.   751;   Laudie  v.  39  S.  E.  R.  257,  85  Am.  St.  R  870; 

Western  Union   Telegraph   Co.,   126  Hudson     River     Telephone     Co.     v. 

N.  C.  431,  35  S.  E.  R.  810,  78  Am.  Watervliet    etc.    Railway    Co.,    135 

St.    R.    668;    Hendricks   v.    Western  N.  Y.  393,  32  N.  E.  R.  148,  31  Am. 

Union  Telegraph  Co.,  126  N.  C.  304,  St.  R.  838;   San   Antonio  etc.   Rail- 

35  S.  E.  R.  543,  78  Am.  St.  R.  658.  way    Co.    v.    South    Western    Tele- 

§398.      Smith   v.    Western    Union  oraph    &    Telephone    Co.,    93    Tex. 

Telegraph   Co.,   84   Tex.   359,    19   S.  313,   55   S.   W.    R.    117.    77    Am.   .«?t. 

W.  R.   441,   31   Am.   St.   R.   59   and  R.  884. 

1-  177 


55HOO-402  OF  QUASI-BAILEES. 

'•telegTcUn"  to  ineliule  a  "telephone  message."  Telegraph 
law  is  therefore  equally  the  laAV  of  the  telephone,  except  in  so 
far  as  the  dift'ereuce  in  the  nature  of  the  services  rendered 
anil  in  the  manner  of  rendering  them  necessitates  a  difference. 
Even  in  such  matters,  the  applications  rather  than  the  founda- 
tion principles  differ. 

^  400.  Not  a  common  carrier.— The  telephone  has  often 
been  referred  to  as  a  common  carrier  of  news,  but  such  expres- 
sions must  be  understood  to  mean  no  more  than  it  is  a  common 
carrier,  just  as  a  telegraph  company  is  a  common  carrier,  in 
that  it  is  engaged  in  carrying  news  as  a  public  calling,  but 
not  in  that  it  is  an  insurer  of  its  service. 

§  401.  Duty  to  serve  all  impartially.— As  the  telephone  has 
been  devoted  to  a  public  use,  it  has  become  charged  with  a 
public  interest  and  must  submit  to  public  control  for  the  com- 
mon good.  It  is  bound  to  serve  the  public  indiscriminately 
and  can  not  serve  one  and  refuse  another.  One  discriminated 
against  may  by  mandamus  compel  the  company  to  furnish 
him  service  like  that  furnished  to  others. 

§  402.  Patent  subject  to  public  control.— The  right  to  serve 
and  refuse  service  at  the  will  of  the  company  has  been  urged 
upon  the  ground  that  the  telephone   is  a  patent  under  the 

§400       State    v.    Citizens'    Tele-  braska  Telephone  Co.,  17  Neb,  126, 
phone  Co.,  61  S.  C.  83,  39  S.  E.  K.  22   N.  W.   E.   237,   52  Am.  E.  404; 
257,  85  Am.  St.  E.  870;  Hockett  v.  State  v.  Telephone  Co.,  36  Ohio  St. 
State,  105  Ind.  250,  5  N.  E.  E.  178,  296,    38    Am.    E.    583;    Commercial 
55  Am.  E.  201 ;   [— ]   Central  Union  Union   Telegraph   Co.   v.   New   Eng- 
Telephone    Co.    v.    Falley,   118   Ind.  land  Telephone  &  Telegraph  Co.,  61 
194,   20   N.   E.   E.   145,   10   Am.   St.  Vt.  241,  17  Atl.  E.  1071,  15  Am.  St. 
E.  'll4;    State    v.    Nebraska    Tele-  E.    893;    State    v.    Citizens'    Tele- 
phone Co.,   17   Neb.   126,   22   N.  W.  phone  Co.,  61  S.  C.  83,  39  S.  E.  E. 
E.    237,   52, Am.   E.    404;    Commer-  257,   85  Am.   St.  E.   870. 
cial   Union    Telegraph   Co.    v.    New  §  402.     State  v.  Telephone  Co.,  36 
England     Telephone    &     Telegraph  Ohio  St.  296,  38  Am.  E.  583;  Hock- 
Co.,    61    Vt.    241,    17    Atl.   E.    1071,  ett  v.  State,  105  Ind.  250,  5  N.  E. 
15  Am.  St.  E.  893.  R-  178,  55  Am.  E.  201;  Chesapeake 
§  401.     [— ]     Central   Union   Tel-  &  Potomac   Telephone  Co.  v.  Balti- 
ci)hone  Co.  v.  Falley,  118  Ind.   194,      more  &  Ohio  Telegraph  Co.,  66  Md. 
20    N.    E.    E.    145,    10    Am.    St.    E.      399,  7  Atl.  E.  809,  59  Am.  E.  167; 
114;    Chesapeake   &    Potomac    Tele-      Commercial  Union  Telegraph  Co.  v. 
phone  Co.  v.  Baltimore  &  Ohio  Tel-      New    England    Telephone    &    Tele- 
egraph  Co.,   66  Md.   399,   7   Atl.   E.      graph   Co.,   61   Vt.   241,   17   Atl.    E. 
809,   .59   Am.   E.   167;    State   v.   Ne-      1071,  15  Am.  St.  E.  893. 

178 


OF  TELEPHONE  COMPANIES.  ^  4^3 

control  of  the  patentee.  That  is  true  in  su  far  that  it  pre- 
vents others  from  using  his  invent i<jn  without  his  consent. 
but  when  his  use  of  his  invention  requires  public  patronage 
and  state  aid,  as  in  the  use  of  the  right  of  eniiiu-nt  domain. 
then  the  patent  becomes  impressed  with  the  public  use  and 
interest  and  subject  to  rea.sonable  public  control  for  the  pub- 
lic good. 

^  403.  Right  to  regulate  charges.— It  is  auotlier  n-sult  of 
the  pul)lic  calling  of  the  telephone  company  that  th.-  «-hargeH 
for  its  service  are  subject  to  legislative  control  in  tixing  a 
reasonable  maximum  rate,  as  is  permitted  in  tin-  ca.se  of  all 
l)roperty  charged  with  a  public  use,  and  the  company  can  not 
evade  such  regulation  by  making  separate  chargj's  f«)r  the 
various  pieces  of  the  transmitting  and  receiving  instruments. 

§403.  Hockett  v.  State,  105  Ind.  113;  |— )  Central  I'liion  Telopbone 
2.50,  5  N.  E.  R.  178,  55  Am.  E.  Co.  v.  Falley,  lis  In. I.  194,  20 
201;   L— ]  Munn  v.  llUnois,  94  U.  S.      N.  E.  R.  145,  10  Am.  St.  R.  114. 


179 


PART  V. 
OF   ACTIONS   AGAINST   CARRIERS. 


CHAPTER   XVI. 
THE  ACTION  AND  THE  DAMAGES. 


§  404.     Classification. 

A.     Actions  against  common 

carriers  of  goods. 
7.     The  parties  to  the  action. 
-iU.i.     The  proper  party  plaintiff. 

406.  Contract  action. 

407.     Consignor  agent  of  con- 
signee. 

408.  Tort  action. 

S.     The  action. 

409.  The  form  of  the  action. 

410.  Action   ex  delicto. 

411.  Action  ex  contractu. 

412.  Modern  procedure. 

3.  The  pleadings. 

413.  Show  case  or  assumsit. 

4.  The  evidence. 

414.  Burden   of  proof. 

5.  The  damages. 

415.  For  injury  or  loss. 

416.  Proximate  cause. 

417.  The  measure  of  damages. 

418.     Value  how  determined. 

419.  For  default  in  carrying. 

420.     Expected  profits. 

B.     Actions  against  carriers 

of   passengers. 
1.     The  parties. 

421.  The  injured  party. 

S.     The  form   of  the  action. 

422.  The  choice  of  action. 
3.     The  pleadings. 


§423. 

424. 
425. 
420. 
427. 
428. 

429. 


430. 
431. 
432. 

433. 

434. 

435. 
436. 

437. 


Special  damages  specially 
pleaded. 

4.  The  evidence. 
Burden  of  proof. 

5.  The  damages. 
Compensation    for     the     in- 
jury. 

Damages  for  wrongful  ejec- 
tion. 

Damages  for  mental  suffer- 
ing and  fright  alone. 

Exemplary  damages. 

C.  Actions  against  carriers 
of  intelligence. 

a.  Carriers  of  mail. 
No  action  maintainable. 

b.  Telegraph  and  Telephone 
companies. 

1.  Parties   to   the  action. 

2.  Form  of  action. 
Contract  or  tort  action. 
An  action  on  the  contract. 
A  tort  action. 

3.  The  pleadings. 
Governed  by  general  rules. 

4.  The  evidence. 
Burden  of  proof. 
.5.  The  damages. 
Measure  of  damages. 

Duty  to  disclose  importance 
of  message. 

Damages  for  mental  suffer- 
ing and  injury  to  feelings. 


180 


ACTIONS  AGAINST  CARfilERS  OF   GOODS.      <<404.4(H] 

j^  404.  Classification.— In  thr  preceding  chapters  the  rules 
of  actions  ai^aiiist  carriers  have  been  incidentally  mentioned 
but  of  necessity  in  a  fragmentary  and  desultory  way.  It  Heeins 
proper  therefore  to  supplement  this  by  an  ord.-rly,  but  very 
brief,  view  of  the  leading  principles  of  actions  in  go  far  as 
there  are  peculiarities  in  actions  again.st  carriers.  For  full 
treatment  of  actions  the  student  is  referred  to  a  work  on 
pleading. 

It  is  convenient  to  consider  separately 

A.  Actions  against  common  carriers  of  goods. 

B.  Actions  against  carriers  of  passengers. 

C.  Actions  against  carriers  of  intelligence. 
Under  each  brief  notice  Avill  be  taken  of 

1.  The  parties  to  the  action. 

2.  The  form  of  the  action. 

3.  The  pleadings. 

4.  The  evidence. 

5.  The  damages. 

A.     Actions  Against  Common  Carrins  of  (ioods. 
1.     The  Parties  to  the  Arfion. 

§  405.  The  proper  party  plaintiff. — The  party  defendant 
in  an  action  is  of  course  the  carrii-r  who  uiuK'rtakes  the  serv- 
ice. In  determining  who  is  the  proper  party  plaintiflT  in 
an  action  against  a  carrier  it  is  of  the  first  importance  to 
determine  the  form  of  the  action  to  be  bn»ught.  When  thf 
remedy  is  sought  in  an  action  on  the  contract  it  must  be  in 
the  name  of  the  party  to  the  contract,  but  when  a  tort  action 
is  brought  for  the  breach  of  a  common  law  duty  t<»  carry  it 
may  be  brought  in  the  name  of  any  party  having  a  b.-n.-- 
fieial  interest  in  the  performance  of  that  duty. 

§  406.  Contract  action.— The  consignor  usually  maki-s  th.- 
contract  of  affreightment.  To  him  therefore  the  carrier  is 
responsible  f-or  the  fulfillment  of  its  terms,  and  he  is  a  proper 

§405.       Hutchinson     on     Carriers.  poration.  Ill'   Mass.  r.-.'4.   17   .Vi".   M 

790-736  ^-•'''   ^^"'•^"   •■'''•'iKlit   Kailr.m.l  « 

'§406.'    Blaneharfl  v.  Page,  8  Gray  Winkley,  IDSl  Ma.ss.  133.  M  N.  I      ■; 

(Mas8.)  281;  Wooster  v.  Tarr,  8  Al-  91.   38   Am.  St.   R.   398:    Mooiht   v. 

len    (Mass)    270,    85   Am.    D.    707;  Chicapn    &    Northwestern    Railway 

[-]  Finn  V.  Western  Railroad  Cor-  Co..  27  Wis.  81,  9  Am.  R.  439;  South. 

181 


§§  407-408  OF  ACTIONS  AGAINST    CAERIERS. 

party  plaintiff  in  an  action  against  the  carrier  for  the  breach 
of  a  contract  of  affreightment  made  with  such  consignor.  If 
the  real  interest  in  the  property  remained  in  him  he  is  the  only 
proper  party  to  sue,  but  if  he  acted  for  the  consignee  in  ship- 
ping the  goods  as  for  example  in  cases  where  he  has  sold  the 
goods  to  the  consignee  and  received  the  price,  then  any  recov- 
ery by  him  he  holds  in  trust  for  the  consignee. 

§  407.     Consi^or   agent   of   consignee.— Presumptively 

the  consignee  is  the  owner  of  the  goods  at  whose  risk  they  are 
carried,  and  in  contracting  for  their  shipment  the  consignor 
acts  as  his  agent.  If  such  be  the  case  the  consignee,  as  the 
party  for  whose  benefit  the  contract  was  made,  has  a  right 
to  sue  for  its  breach,  and  his  right,  if  he  choose  to  exercise  it, 
is  paramount  to  that  of  the  consignor.  A  recovery  against  the 
carrier  by  either  is  a  bar  to  an  action  by  the  other.  The 
assignee  of  a  bill  of  lading  of  course  stands  in  the  shoes  of 
the  consignee,  his  assignor. 

The  presumption  that  the  consignee  is  the  owner  may  be 
rebutted,  and  if  it  be  shown  that  he  had  no  property,  general 
or  special,  in  the  goods,  and  incurred  no  risk  in  their  trans- 
portation, he  can  not  maintain  an  action  against  the  carrier. 

§  408.  Tort  action.— Any  party  having  a  beneficial  interest 
in  the  performance  of  the  common  law  duty  to  carry  may  sue 
in  tort  for  the  carrier's  failure  to  perform,  and  also  for  a 
refusal  to  carry  made"  to  such  party  or  his  agent.  His  right 
or  interest  in  the  property  gives  him  a  right  to  insist  that  the 

ern    Express    Co.    v.    Caperton,    44  188,  10  Am.  R.  342 ;  KnuUer  v.  Elli- 

Ala.   101,   4  Am.  R.   118;    Sisson  v.  son,   47   N.   Y.    36,    7   Am.   R.   402; 

Cleveland    &    Toledo    Railroad    Co.,  Southern   Express    Co.    v.    Caperton, 

14  Mich.  489,  90  Am.  D.  2.52;  Hand  44  Ala.  101,  4  Am.  R.  118. 

V    Baynes,   4  Whart.    (Pa.)    203,   33  §  408.       [-]       Finn    v.    Western 

Am.  D.  54.  Railroad  Corporation,  112  Mass.  524, 

§  407.    Hooper  v.  Chicago  &  North  17  Am.  R.  128;   Murray  v.  Warner, 

Western    Railway   Co.,   27    Wis.    81,  55    N.    H.    546,    20     Am.     R.     227; 

9  Am.  R.  439;    [—1   Dyer  v.  Great  [—1   New  Jersey  Steam  Navigation 

Northern  Railway  Co.,  51  Minn.  345,  Co.    v.    Merchants '    Bank,    6    How. 

53   N.   W.   E.    714,    38   Am.    St.    R.  (U.    S.)    344;    Elkins    v.    Boston    & 

506 ;  Southern  Express  Co.  v.  Craft,  Maine  Railroad  Co.,  19  N.  H.   337, 

49  Miss.  480,  19  Am.  E.  4;  [— ]  Finn  51  Am.  D.  184;  Ralph  v.  Chicago  & 

V.  Western  Railroad  Corporation,  112  North  Western  Railway  Co.,  32  Wis. 

Mass.  524,  17  Am.  R.  128;   Murray  177,  14  Am.  R.  725.     Compare  Lock- 

V.  Warner,  55  N.  H.  546,  20  Am.  R.  hart  v.  Western  &  Atlantic  Railroad 

227;   Thompson  v.  Fargo,  49  N.  Y.  Co.,  73  Ga.  472,  54  Am.  E.  883. 

182 


ACTIONS  AGAINST  CARRIERS  OF   GOODS.     $§  409-4 1_» 

carrier  shall  perform  the  duty  imposed  upon  him  by  Uw.  or 
respond  in  damages  for  failing  therein. 

The  owner  then  may  always  sue  in  tort  for  loss,  injury  «.r 
detention  of  the  goods,  and  in  contract  if  he  is  directly.  .>r 
by  agent,  a  party  to  the  contract.  And  this  h.-  may  do  thoii-^'h 
he  was  undisclosed  to  the  carrier,  and  though  he  was  not  the 
general  owner,  but  had  a  mere  special  property,  such  &»  that 
of  a  bailee.  In  the  latter  case  he  of  course  recovers  for  the 
benefit  of  the  general  owner. 

2.    Thr  Action. 

§  409.  The  form  of  the  action  against  the  carrier  depends 
on  the  nature  of  the  complaint.  A  breach  of  the  carrier's 
common  law  duty  is  a  tort  for  which  an  action  on  the  case  will 
lie.  For  breach  of  a  special  contract  the  action  must  be  in 
assumpsit  on  that  contract.  Where  the  old  rules  of  pleading 
are  still  in  force  it  often  becomes  important  to  choose  between 
the  action  ex  delicto  and  one  ex  contractu. 

§  410.    Action  ex  delicto. — If  there  l)e  doubt  as  to  the 

proper  parties  defendant  the  tort  action  is  preferable,  as  re- 
covery may  be  had  against  all  or  any  part  of  the  (h'fendaut'^ 
in  a  tort  action.  Liability  of  joint  tort  feasors  is  several  and 
nonjoinder  or  misjoinder  can  not  defeat  the  action  as  to  the 
parties  actually  sued. 

A  declaration  in  case  moreover  docs  not  reciuirc  the  saiii-- 
certainty  of  pleading  as  in  assumpsit,  and  finally  the  measure 
of  damages  in  some  cases  is  larger  in  a  tort  action,  covering 
the  full  loss  and  sometimes  punitive  damages  as  well. 

§  411.     The  action  ex  contractu  has  the  advantage  that 

with  the  declaration  on  contract  may  be  joined  the  common 
counts  in  assumpsit.  Furthermore,  th.'  action  rr  contractu 
survives  to  the  personal  representative  of  the  plaintiff. 

But  a  count  in  trover  can  not  be  joined  with  assumpsit.  nn«l 
failure  to  join  all  parties  who  are  jointly  liabl."  for  th.'  wron- 
is  fatal  to  an  action  ex  contractu. 

^412,     Modern   procediu-e   in    most    of   th.-   states   has 

§410.       Hutchinson    on    Carriers,  §  41J.      Hutohinson    on     Curriert, 

740-742.  740-74S. 

§  411.      Hutcbiuson    on     Carriers, 
743. 

183 


§§  413-414         OF  ACTIONS  AGAINST    C'AEEIERS. 

assimilated  tort  and  contract  actions  to  the  same  rules.  Yet 
occasionally,  even  now,  it  is  important  to  sue  upon  contract 
rather  than  upon  the  common  law  duty.  This  is  so  where 
the  carrier  has  by  special  contract  undertaken  some  duty  not 
imposed  by  law.  For  breach  of  this  duty  the  suit  must  be 
upon  the  contract. 

On  the  other  hand  it  is  better  to  sue  for  breach  of  the  com- 
mon law  duty  where  as  is  usually  the  case  the  contract  of 
shipment  limits  the  liability  of  the  carrier.  This  throws  upon 
the  carrier  the  burden  of  pleading  and  proof  of  such  special 
terms. 

3.  The  Pleadings. 

§  413.  Show  case  or  assumpsit. — Even  under  modern  prac- 
tice codes  it  is  important  to  know  whether  the  plaintiff  sues 
for  breach  of  duty  or  of  contract,  as  the  nature  of  the  defence 
may  depend  upon  the  form  of  the  declaration.  If  breach  of 
duty  is  relied  on  this  duty  must  be  set  out  with  particularity 
and  its  violation  and  the  resulting  damage  must  be  averred. 

If  the  suit  be  upon  the  contract  it  must  be  set  out  verbatim 
or  according  to  its  legal  effect.  Some  codes  require  a  de- 
scription of  the  contract  accompanied  by  its  profert  or  ex- 
hibit. Such  description  and  exhibit  will  of  course  be  con- 
clusive that  the  plaintiff  had  elected  to  rely  upon  the  contract. 

Without  further  mention  in  this  connection  the  usual  rules 
of  pleading  are  to  bie  understood  as  applicable  to  actions 
against  carriers. 

4.  The  Evide7ice. 

§  414.  Burden  of  proof. — The  only  departure  from  the  ordi- 
nary rules  of  evidence  calling  for  remark  in  this  connection 
is  that  the  burden  of  proving  the  cause  of  the  injury  or  loss 
rests,  not  upon  the  party  affirming  the  loss,  but  upon  the 
carrier. 

§  413.      Hutchinson     on     Carriers,  Indiana  Eailroad  Co.,   16   Mich.  79, 

749;    Tallehassee  Falls  Mfg.   Co.   v.  93  Am.  D.   208;   Turney  v.  Wilson, 

Western  Eailway  Co.,  117  Ala.  520,  7    Yerg.    (Tenn.)    340,    27    Am.    D. 

23  So.  R.   139,   67  Am.  St.  R.   179,  515;    Tallehassee   Falls   Mfg.   Co.   v. 

note.  Western  Railway  Co.,   117  Ala  520, 

§  414.     Hutchinson     on    Carriers,  23  So.  E.  139,  67  Am.  St.  R.  179  and 

766-767;     [ — ]    Railroad    v.    Reeves,  note;  Lamb  v.  Camden  &  Amboy  etc. 

10  Wall.   (U.  S.)   176;    [— ]   McMil-  Co.,   46   N.   Y.   271,   7   Am.   R.   327. 

Ian  V.  Michigan  Southern  &  Northern  Compare  Shriver  v.   Sioux  City  &  St. 

184 


ACTIONS  AGAINST  CARRIERS  OF   GOODS.     §§  41541G 

The  plaintiff  must  prove  delivery  to  the  carrier,  the  car- 
rier's undertaking  and  the  loss  or  damat^e.  To  excuse  himself 
the  carrier  then  rests  under  the  burden  of  showing:  that  the 
loss  was  caused  by  one  of  the  excepted  perils,  or  that  it  wan 
due  to  a  cause  from  which  he  is  by  contract  cxcusi.mI. 

Whether  the  carrier  must  go  farther  and  estalilish  his  own 
freedom  from  negligence  is  a  disputed  question. 

5.    The  Damages. 

§  415.  For  injury  or  loss  the  damages  recoverable  have 
been  said  to  depend  on  the  nature  of  the  action.  The  tort- 
feasor is  liable  for  "all  the  injurious  consecjuences  of  h'w 
tortious  act,  which,  according  to  the  usual  course  of  eventH 
and  the  general  experience,  were  likely  to  ensue."  It  does 
not  matter  that  he  did  not  actually  contemplate  the  resulting 
injury  as  the  probable  consequence  of  his  wrongful  act. 

For  the  breach  of  the  contract  the  damages  extend  only 
"to  the  direct  consequences  of  the  breach;  to  such  as  usually 
occur  from  the  breach  of  such  a  contract,  and  as  wvrv  within 
the  contemplation  of  the  parties,  when  the  contract  was 
entered  into,  as  likely  to  result  from  a  breach."  The  greater 
foresight,  at  the  time  of  the  breach,  of  the  defaulting  party 
as  to  the  probable  consequences  of  his  act  will  not  incn-a-s*- 
his  responsibility  in  contract,  but  in  tort  it  does.  This  dis- 
tinction is  often  ignored  and  it  is  sometimes  denied  that  the 
character  of  the  wrong  declared  upon  can  affect  the  damages. 

§  416.    Proximate   cause.— The   default   of   the  carrier 

must  have  been  the  proximate  cause  of  the  injury.     For  l<>s.s..s 

Paul    Railway    Co.,    24    Minn.    506,  326,  47  X.  E.  R.   101.1.  61   Am.  St. 

M  Am   R    353-  Hull  v.  Chicago  etc.  R.  288;  Brown  v.  Chicago,  Milwau- 

Railway  Co.,  41  Minn.  510,  43  N.  W.  kee  &  St.  Tuul  Railway  Co..  .".4  W.^ 

R    391,  16  Am.  St.  R.  722;   Adams  342,   11    N.   W.   R.   :^m,  41    Am.   R. 

Express    Co.    v.    Stettaners,    61    111.  41;   Brock  v.  (iale.    14   Fla.  .Vj:i.   14 

184,  14  Am.  R.  57.  Am.  R.  3.16. 

§415.  Compare  Hutchinson  on  §416.  Ha.llcy  v.  Buxcn.ble.  9 
Carriers,  768  b  (quoting  Sutherland  Exch.  341;  Gritlin  v.  Culver.  16  N. 
on  Damages),  and  5  Am.  &  Eng.  Y.  489,  69  Am.  D.  718;  l"!  ^^'-un- 
Ency  of  Law,  394;  see  also  [-1  Sa-  nah  etc.  Railway  Co.  v.  Pntchanl. 
vannah  etc.  Railway  Co.  v.  Pritch-  77  Ga.  412.  1  S.  E.  R  261.  4  Am. 
ard  77  Ga.  412,  1  S.  E.  R.  261,  4  St.  R.  92;  Brown  v.  (  h.onRo.  .Mil- 
Am'.  St.  R.  92;  Swift  River  Co.  v.  waukoo  &  St.  Paul  Kailwav  Co  M 
Fitchburg    Railroad    Co.,    169    Mass.  Wis.    342.  11    N.  XN.  H.  .^.6,  41  Am. 

185 


§§417-418  OF  ACTIONS  AGAINST    CAEEIERS. 

that  are  remote,  speculative  or  possible  merely  there  can  be 
no  recovery.  But  for  losses  due  to  its  default  the  carrier 
is  liable  if  they  are  the  usual  and  natural  consequences  of  such 
default,  or  can  fairly  be  said  to  have  been  within  the  con- 
templation of  the  parties  at  the  time  the  contract  of  shipment 
was  made  as  the  natural  and  probable  consequences  of  such 
default  provided  the  losses  are  the  proximate  and  not  the 
remote  consequences  of  the  default,  and  are  certain  in  their 
nature  and  not  speculative  and  contingent.  In  tort  the  car- 
rier is  liable  for  all  the  natural  and  proximate  results  of  the 
wrongful  act  complained  of  whether  reasonably  expected  or 
not. 

§  417.  The  measure  of  damages  for  loss  or  injury  is,  in 
general,  the  value  of  the  goods  at  the  destination  with  interest 
on  such  value  from  the  time  when  they  should  have  been 
delivered,  together  with  any  other  loss  of  which  the  carrier's 
fault  was  the  proximate  cause.  From  this  must  be  deducted 
any  unpaid  charges  of  the  carrier  and  any  value  the  goods 
may  have  had  if  accepted  in  an  injured  condition.  The  same  rule 
applies  where  the  carrier  has  been  guilty  of  conversion.  Goods 
so  injured  as  to  be  practically  worthless  need  not  be  accepted 
at  all. 

§  418.    Value  how  determined. — The  value  of  the  goods 

is  ordinarily  the  market  value  or  the  cost  of  obtaining  other 
goods    of   like   kind.-    Embarrassment   is    met   in   framing   a 

E.    41;    Swift    River    Co.    v.    Fitch-  Connecticut    etc.    Railroad    Co.,    124 

burg  Railroad  Co.,   169   Mass.   326,  Mass.  421,  26  Am.  R.  673;  Bowman 

47  N.  E.  R.  1015,  61  Am.  St.  R.  288;  v.  Teall,  23  Wend.   (N.  Y.)   306,  35 

Brock  V.  Gale,  14  Fla.  523,  14  Am.  Am.    D.    562;    Hand    v.    Baynes,    4 

R.   356;   Harvey  v.   Connecticut  etc.  Whart.  (Pa.)  204,  33  Am.  D.  54. 

Railroad  Co.,  124  Mass.  421,  26  Am.  §  418.    Hudson  v.  Northern  Pacific 

R.    673;    Deming    v.    Grand    Trunk  Railway  Co.,  92  Iowa  231,  60  N.  W. 

Railway  Co.,  48   N.   H.  455,   2   Am.  R.     608,     54     Am.     St.     R.     550  j 

R.  267;  Ward  v.  New  York  Central  [— ]   Cooper  v.  Young,   22  Ga.   269, 

Railroad  Co.,  47  N.  Y.  29,  7  Am.  R.  68  Am.  D.  502 ;  Sisson  v.  Cleveland 

405 ;  [— ]  Mentzer  v.  Western  Union  &  Toledo  Railroad  Co.,  14  Mich.  489, 

Telegraph  Co.,  93  Iowa  752,   62   N,  90  Am.  D.  252;   Jones  v.  St.  Louis, 

W.  R.  1,  57  Am.  St.  R.  294.  Iron   Mountain  &  Southern  Railway 

§417.      McGregor    v.    Kilgore,    6  Co.,   53  Ark.   27,    13  S.   W.   R.   416, 

Ohio  359,   27  Am.  D.  260;   Blumen-  22   Am.   St.   R.   175;    [— ]    Green  v. 

thai  V.  Brainerd,  38  Vt.  402,  91  Am.  Boston  &  Lowell  Railroad   Co*.,   128 

1).   349;    [— ]   Cooper  v.   Young,   22  Mass.  221,  35  Am.  R.  370;   Fairfax 

Ga.  269,  68  Am.  D.  502;  Harvey  v.  v.  New  York  Central  Railroad  Co., 

186 


ACTIONS  AGAINST  CARRIERS  OF  GOODS.      §*  4194*^ 

proper  rule  of  damages  for  property  having  special  value  to 
the  owner,  but  no  market  value.  It  has  been  said  that  it  is 
compensated  at  the  actual  value  to  the  owner,  n«it  at  a  fanci- 
ful price  but  at  the  actual  money  loss  he  sustains,  and  that  of 
this  value  only  a  jury  can  be  the  judges.  No  rule  has  been 
suggested  that  is  definite,  satisfactory  and  logical.  TIm-  eff.^-t 
of  fixing  the  value  in  the  contract  of  sliipnient  has  been  pre- 
viously discussed  (§  270). 

§  419.  The  measure  of  damages  for  default  in  carrying, 
either  because  of  delay,  or  failure  or  refii.sal  to  carry  at  all.  is  th.- 
difference  between  the  market  value  of  the  goods  at  the  place 
where  they  were  to  be  delivered  and  at  the  tinje  they  should 
have  arrived  and  their  value  when  they  did  arrive  or  at  the 
place  where  they  were  refused.  To  this  should  be  added  in- 
terest from  the  time  when  they  should  have  been  delivered, 
and  such  other  damages  as  result  proximately  from  the  car- 
rier's default.  This  will  include  reasonable  expen.ses  of  the 
owner  incurred  in  trying  to  prevent  lo.ss  including  any  reason- 
able charges  that  may  have  been  paid  to  other  carriers  to  per- 
form the  service  for  which  the  defendant  carrier  is  in  default. 

§  420.     Expected  profits  from  a  business  can  not  be  recov- 

73  N.  Y.  167,  29  Am.  R.  119;  Hous-  Chicago    Railroa.l    Co.,   26    111.    20(5, 

ton  &  Texas  Central  Railroad  Co.  v.  79  Am.  D.  369;  Griffin  v.  Colvor.  16 

Burke,  55  Tex.  323,  40  Am.  R.  808.  X.  Y.  489,  69  Am.  1).  71S;  Foanl  v. 

Compare    Watt    v.    Nevada    Central  Atlantic  &  North  Carolina  Railroad 

Railroad  Co.,  23  Nev.  154,  44  Pac.  Co.,   8   Jones's  L.   (N.  C.)    235,   78 

R,  423,  46  Pac.  R.  52,  726,  62  Am.  Am.   D.   277;   Cooper  v.   Young.   22 

St.   R.   772   with   note   to   the  same,  Ga.  269,  68  Am.  D.  502;   Harvey  v. 

62  Am.  St.  R.  791.  Connecticut   etc.    Railroad    Co.,    124 

§419.     [— ]      Savannah  etc.  Rail-  Mass.      421,      26      Am.      R.      673; 

way   Co.   V.    Pritchard,   77   Ga.   412,  [ — ]  Ayres  v.  Chicago  &  North  West- 

1  S.  E.  R.  261,  4  Am.  St.  R.  92;  em  Railway  Co.,  71  Wis.  372,  37 
[— ]  Cooper  V.  Young,  22  Ga.  269,  N.  W.  R.  432,  5  Am.  St.  R.  226: 
68  Am.  D.  502;  Deming  v.  Grand  Missouri  Pacific  Railroad  Co.  r. 
Trunk  Railway  Co.,  48   N.   H.   455,  Fagan,  72  Tex.  127,  9  S.  W.  R.  749. 

2  Am.  R.  267;  Ward  v.  New  York  13  Am.  St.  R.  776;  [  —  1  Onlciui 
Central  Railroad  Co.,  47  N.  Y.  29,  etc.  Railroad  Co.  v.  Rae,  IS  111.  4S8, 
7  Am.  R.  405;  Hudson  v.  Northern  68  Am.  D.  574;  Sisson  v.  Cievclaml 
Pacific  Railway  Co.,  92  Iowa  231,  &  Toledo  Railroad  Co..  14  Mich. 
60  N.  W.  R.  608,  54  Am.  St.  R.  489.  90  Am.  D.  252;  Pect  v.  Chicago 
550;  Ward's  etc.  Co.  v.  Elkins,  34  &  North  Western  Railway  Co..  20 
Mich.    439;    Devereaux    v.    Buckley,  Wis.  624.  91  Am.  D.  446. 

34    Ohio    St.    16,    32    Am.    R.    342;  §420.     Swift   River  Co.  v.   I-^tfh- 

Priestley    v.    Northern    Indiana    &       l>nrg   Railroad   Co.,    169   Mm*.   326, 

187 


§§421-422  OF  ACTIONS  AGAINST    CAERIEES. 

ered  where  they  are  speculative  and  uncertain,  or  where  the 
carrier  had  no  notice  that  such  damages  might  ensue  from 
his  non-performance.  But  profits  that  are  certain,  and  that 
may  fairly  be  said  to  have  been  within  the  contemplation  of 
tlio  parties  may  be  recovered. 

B.    Actions  Against  Carriers  op  Passengers. 
1.    The  Parties. 


s 


421.     The  injured  party  at  the  common  law  was  the  proper 

person  to  bring  an  action  for  personal  injuries.  For  loss  of 
services  because  of  such  injuries  the  master,  parent  or  husband 
might  maintain  an  action. 

If  the  injury  caused  death  there  was  no  right  of  action,  as 
all  right  to  services  ceased  at  death.  Lord  Campbell's  Act, 
however,  in  various  forms,  has  been  enacted  in  all  the  states 
but  not  by  the  federal  congress.  According  to  its  provisions 
the  right  of  action  for  injury  causing  death  survives  to  the 
personal  representative  of  the  deceased.  Actions  under  these 
statutes  must  be  governed  strictly  by  the  statutes,  and  the 
action  will  be  defeated  if  brought  by  any  other  person  than 
the  party  named  in  the  statute. 

2.     The  Form  of  Action. 

§  422.  The  choice  of  action  is  governed  largely  by  the  same 
considerations  as  those  already  noted  in  actions  against  carriers 

47  N.  E.  E.  1015,  61  Am.  St.  E.  St.  R.  397;  Morgan  v.  Southern  Pa- 
288 .  f _]  Savannah  etc.  Eailway  Co.  cifie  Co.,  95  Cal.  510,  30  Pae.  E.  603, 
V.  Pritehard,  77  Ga.  412,  1  S.  E.  E.  29  Am.  St.  E.  143;  [— ]  Louisville 
261,  4  Am.  St.  E.  92;  [ — ]  Cooper  etc.  Eailway  Co.  v.  Goodykoontz, 
V.  Young,  22  Ga.  269,  68  Am.  D.  119  Ind.  Ill,  21  N.  E.  E.  472,  12 
502;  Eocky  Mount  Mills  V.  Wilming-  Am.  St.  E.  371  and  note;  Usher  v. 
ton  etc.  Eailroad  Co.,  119  N.  C.  693,  West  Jersey  Eailroad  Co.,  126  Pa. 
25  S.  E.  E.  854,  56  Am.  St.  E.  682 ;  St.  206,  17  Atl.  E.  597,  12  Am.  St. 
Priestley  v.  Northern  Indiana  &  E.  863;  Dwyer  v.  Chicago  etc.  Eail- 
Chicago  Eailroad  Co.,  26  111.  206,  way  Co.,  84  Iowa  479,  51  N.  W.  E. 
79  Am.  D.  369;  Foard  v.  Atlantic  &  244,  35  Am.  St.  E.  322;  Hawkins  v. 
North  Carolina  Eailroad  Co.,  8  Front  Street  Cable  Co.,  3  Wash.  592, 
Jones's  L.  (N.  C.)  235,  78  Am.  D.  28  Pae.  E.  1021,  28  Am.  St.  E.  72; 
277;  Brock  v.  Gale,  14  Fla.  523,  14  McDonald  v.  Chicago  &  North  West- 
Am.  E.  356.  ern  Eailway  Co.,  26  Iowa  124,  96 
§  421.  Kelley  v.  New  York,  New  Am.  D.  114;  Carey  v.  Berkshire  Eail- 
Haven  &  Hartford  Eailroad  Co.,  168  road  Co.,  1  Cush.  (Mass.)  475,  48 
Mass.  308,  46  N.  E.  E.  1063,  60  Am.  Am.  D.  616  and  note. 

188 


ACTIOXS  AGAINST  CAKKTKR8  OF    PASSENGERS.  §§  42;i424 

of  goods.     If  exemplary  or  punitive  damages  are  desired  th.» 
declaration  must  be  in  case  for  the. tort  of  the  carrier. 

'■i.     The  Pleadings. 

i  423.  Special  damages  because  of  the  plantiff's  staii..n  in 
life,  business,  or  relation  to  membei-s  of  a  d.-pi-ndent  family, 
must  be  specially  pleaded.  But  if  an  injury  be  set  forth 
injuries  naturally  and  proximately  flowing  from  it  nee<l  not 
be  specially  alleged. 

4.     77/ f  Evidence. 

^  424.  Burden  of  proof.— Proof  of  injury,  to  a  pa.ssenpcr 
raises  no  such  presumption  of  liability  against  tlic  carrier  as 
was  noted  in  the  case  of  the  carriage  of  goods.  The  passen- 
ger carrier  is  liable  only  when  guilty  of  negligence  and  the 
plaintiff  must  prove  facts  or  conditions  from  which  it  is  rea- 
sonable to  infer  negligence  before  thert^  is  a  {jvimn  facie  eas** 
against  the  carrier.  Proving  defects  in  the  vehicle,  collision 
of  trains,  etc.,  will  raise  a  presumption  of  negligence  which 
the  carrier  is  then  called  upon  to  rebut. 

Whether  the  carrier  has  the  burden  of  proving  that  th«* 
passenger  was  guilty  of  contributory  negligence  is  in  <lis- 
pute  but  the  weight  of  authority  is  that  he  must.  Proof  that 
the  carrier  was  free  from  negligence  of  course  releases  him 
from  liability. 

§422.      Browu    v.    Chicago,    Mil-  villo,    .New    All)aiiy   \    Chii-ago   Kail- 

waukee  &  St.  Paul  Eailway  Co.,  54  way    Co.    v.    Snyder,    117    Ind.    435, 

Wis.  342,  11  N.  W.  R.  356,  41  Am.  E.  20    X.    E.    R.    284,    10    Am.    St.    R. 

41;  Walsh  v.  Chicago,  Milwaukee  &  60;    Mitchell    v.    Chicago    &    Graiul 

St.  Paul  Railway  Co.,  42  Wis.  23,  24  Trunk    Railway   Co.,   51    Mich.    230, 

Am.  R.  376;   Spellman  v.  Richmond  16     X.     W.     R.     388,     47     Am.     R. 

&  Danville  Railroad  Co.,  35  S.  C.  475,  566;    Pennsylvania    Railroad   Co.    v. 

14  S.  E.  R.  947,  28  Am.  St.  R.  858.  Raiordon,   119   Pa.  St.   577,   13  Atl. 

§423.  [—1  Williams  v.  Oregon  R.  324,  4  Am.  St.  R.  670;  |  — 1  War- 
Short  Line  Railroad  Co.,  18  Utah  reu  v.  Fitchburg  Railroad  Co..  8  Al- 
210,  54  Pac.  R.  991,  72  Am.  St.  R.  lea  (Mass.)  227,  85  Am.  I).  700; 
777,  Ueyo  v.  Xew  York  Central  Railroad 

§424.      [— ]      Meier     v.     Peunsyl-  Co..    M    N.    V.    9,    S8    Am.    I>.    418, 

vania  Railroad  Co.,  64  Pa.  St.  225,  note;   Philadeli.hia  etc.  Railroad  Co. 

3   Am.    R.    581;    Hawkins   v.    Front  v.  Anderson,  72  .Mil.  519.  20  All.  R. 

Street  Cable  Railroad  Co.,  3  Wash.  2.    20   Am.    St.   R.    490.    n..to:    Ala- 

592,  28  Pac.  E.  1021,  28  Am.  St.  R.  bama   Great    Southern    Railroad   Vo. 

72;      Spellman     v.     Lincoln     Rapid  v.  Frazicr.  93  Ala.  45.  9  So.  R.  303. 

Transit  Co.,  36  Xeb.  890,  55  X.  W.  30  Am.  St.  R.  28  and  note  at  |Mig» 

R.   270,   38   Am.   St.  R.   753;    Louis-  40,  see  al-so  note  to  43  Am.  D.  363. 

189 


§§  425-426        01''  ACTIONS  against  carkieks. 

5.    The  Damages. 

I  425.  Compensation  for  the  injury  is  the  measure  of  dam- 
ages to  a  passenger  who  has  suffered  from  the  negligence  or 
wrongful  act  of  the  carrier.  This  includes  inconvenience,  loss 
of  time,  pecuniary  loss,  medical  expenses,  and  pain  and  suf- 
fering of  mind  and  body,  past  and  also  future,  if  such  future 
suffering  seems  reasonably  inevitable. 

Future  damages  caused  by  diminution  of  earning  power,  or 
in  case  of  death,  earnings  durmg  the  probable  duration  of 
life,  are  properly  considered  as  well  as  the  number  and  sta- 
tion of  those  dependent  on  the  deceased. 

But  all  damages  must  be  the  natural  and  proximate  conse- 
quence of  the  injury.  "Whether  sickness  and  disease  follow- 
ing the  injury  are  so  caused  by  it  as  to  be  within  the  rule  of 
proximate  cause  depends  partly  on  the  circumstances  and 
partly  on  the  jurisdiction  where  the  case  is  tried.  Some 
courts  are  more  liberal  than  others  in  their  view  of  what  is 
to  be  included  as  a  proximate  result. 

§  426.  Damages  for  wrongful  ejection  from  the  train,  or 
for  rightful  ejection  with  unnecessary  force  or  in  an  improper 

§  425.     Goodhart   v.   Pennsylvania  Georgia    Eailroad    Co.    v.    Hayden, 

Railroad  Co.,  177  Pa.  St.  1,  35  Atl.  R  71  Ga.,  518,  51  Am.  R.  274;  McHugh 

191,  55  Am.  St.  R.  705 ;    [— ]   Filer  v.  Schlosser,  159  Pa.  St.  480,  28  Atl. 

V.   New   York  Central  Rai4road  Co.,  E.  291,  39  Am.  St.  R.  699;   Dwyer 

49  N.  Y.   47,   10   Am.   R.   327;    Mc-  v.  Chicago  etc.  Railway  Co.,  84  la. 

Donald  v.  Chicago  &  North  "Western  479,  51  N.  W.  R.  244,  35  Am.  St.  R. 

Railway  Co.,  26  Iowa  124,  96  Am.  D.  322 ;  Morgan  v.  Southern  Pacific  Co., 

114;    Brown   v.   Chicago,   Milwaukee  95  Cal.  510,  30  Pac.  R.  603,  29  Am. 

&    St.    Paul    Railway    Co.,    54    Wis.  St.    R.    143;    Pennsylvania   Railroad 

342,  11  N.  W.  R.  356,  41  Am.  R.  41;  Co.  v.  Books,  57  Pa.  St.  339,  98  Am. 

Barker  v.  Ohio  River  Railroad  Co.,  D.   229;    Hansley  v.  Jamesville   etc. 

51  W.  Va.  423,  41  S.  E.  R.  148,  90  Railroad  Co.,   115  N.  C.  602,   20  S. 

Am.    St.    R.    808;    Louisville,    New  E.  R.  528,  44  Am.  St.  R.  474;  Gulf, 

Albany    &    Chicago    Railway    Co.   v.  Colorado   &   Santa   Fe   Railway   Co. 

Snyder,   117  Ind.  435,   20  N,  E.   R.  v.  Hayter,  93  Tex.  239,  54  S.  W.  E. 

284,  10  Am.  St.  R.  60;  Terre  Haute  944,  77  Am.  St.  R.  856;  Hawkins  v. 

etc.   Railroad   Co.   v.   Buck,   96   Ind.  Front  Street  Cable  Co.,  3  Wash.  592, 

346,  49  Am.  R.  168;  Turner  v.  Great  28  Pac.  R.  1021,  28  Am.  St.  R.  72; 

Northern  Railway  Co.,  15  Wash.  213,  see    also    the    extended    note    to    85 

46  Pac.  R.  243,  55  Am.  St.  R.  883;  Am.  St.  R.   835  and  70  Am.  St.  R. 

[ — J    Louisville   etc.   Railway   Co.   v.  669. 

Goodykoontz,  119  Ind.  Ill,  21  N.  E.  §  426.     Kansas  City  Railroad  Co. 

R.   472,    12    Am.    St.    R.    371,    note;  v.    Foster,    134   Ala.    244,    32    S.    R. 

190 


ACTIONS  AGAINST  (AKKIEKS  OF    PASSENGERS.        §427 

manner,  include  compensation  for  expenses  actually  incurred 
for  the  loss  of  time  and  interruption  of  bu.siuess.'for  bodily 
suffering  and  for  mental  pain  caused  by  the  injury  to  hu-ViusH, 
annoyance,  vexation  and  humiliation  resulting  from  the  in! 
dignity. 

If  the  ejection  has  been  accompanied  by  insulting  treatment 
or  by  wilful,  wanton  or  malicious  conduct  on  the  part  of  the 
carrier's  servants,  such  conduct  may  properly  be  conHidered 
as  aggravating  the  injury  and  increasing  the  (laniatr.-s. 

§  427.  Damages  for  mental  suffering  or  fright  alone. 
neither  accompanied  nor  followed  by  physical  injury  are  never 
allowed.  On  the  other  hand  if  physical  injuries  are  accom- 
panied by  mental  pain  or  fright  the  damag.-s  may  cover  the 
consequences  of  the  mental  as  Avell  as  of  the  physical  suffer- 

773,  92  Am.  St.  E.  25;  Cleveland  etc.  &  Pacific-  Railroad  Co.,  15  Miun.  49. 

Railway    Co.    v.    Kinsley,    27    Ind.  2  Am.  R.   1(»2. 

App.  135,  60  N.  E.  E.  169,  87  Am.  §  427.  Mittlicil  v.  RochciJtor  Rail- 
St.  E.  245;  [ — ]  Forsee  v.  Alabama  way  Co.,  151  N.  Y.  107,  45  N.  E. 
Great  Southern  Railroad  Co.,  63  K.  354,  56  Am.  St.  R.  604- 
Miss.  66,  56  Am.  E.  801;  Hot  |— ]  Spade  v.  Lynu  &  Boston  Rail- 
Springs  Eailroad  Co.  v.  Deloney,  65  r(-ad  Co.,  168  Mass.  2S5,  47  N.  E. 
Ark.  177,  45  S.  W.  E.  351,  67  Am.  R.  88,  60  Am.  St.  R.  393.  172  .Masu. 
St.  E.  913 ;  Gillingham  v.  Ohio  Eiver  488,  52  N.  E.  R.  747,  70  Am.  St.  R. 
Eailroad  Co.,  35  W.  Va.  588,  14  S.  E.  298;  Turner  v.  Groat  Northern  Kail- 
E.  243,  29  Am.  St.  E.  827;  Jefferson-  uay  Co.,  15  Wash.  213,  46  Pac.  R, 
villa  Eailroad  Co.  v.  Eogers,  28  Ind.  243,  55  Am.  St.  R.  SS3;  Goodhart 
1,  92  Am.  D.  276;  Duggan  v.  Balti-  v.  Pennsylvania  Railroad  Co.,  177 
more  &  Ohio  Eailroad  Co.,  159  Pa.  Pa.  St.  1.  35  Atl.  R.  191.  55  Am.  8t. 
St.  248,  28  Atl.  E.  182,  39  Am.  St.  R.  705;  .Morgan  v.  Southern  Parific 
E.  672;  Georgia  Eailroad  &  Banking  Co.,  95  Cal.  510,  30  Pac,  R.  603, 
Co.  v.  Eskew,  86  Ga.  641,  12  S.  E.  29  Am.  St.  R.  143;  Hot  Sprinff* 
E.  1061,  22  Am.  St.  E.  490;  Eailroad  Co.  v.  Deloney.  65  Ark.  177, 
[— ]  Carsten  v.  Northern  Pacific  45  S.  W.  R.  351.  67  Am.  St.  R.  913; 
Eailroad  Co.,  44  Minn.  454,  47  N.  W.  Contra,  Gulf.  Colorado  &  Santa  Fe 
E.  49,  20  Am.  St.  E.  589 ;  Hansley  Eailway  Co.  v.  Hayter,  93  Tex.  239, 
V.  Jamesville  etc.  Eailroad  Co.,  115  54  S.  W.  R.  944.  77  Am.  St.  R.  K56; 
N.  C.  602,  20  S.  E.  R.  528,  44  Am.  sec  note  at  p.  859.  Triyp  v.  St.  Ix)uis 
St.  R.  474;  Gorman  v.  Southern  Pa-  dc  Railroad  Co..  74  .Mo.  147.  41 
cific  Co.,  97  Cal.  1,  31  Pac  R.  1112,  Am.  R.  .305;  (—1  Mentror  v.  \V«l- 
33  Am.  St.  R.  157;  Pittsburg  etc.  ern  Union  Telegraph  Co.,  93  la. 
Eailway  Co.  v.  Reynolds,  55  Ohio  752,  62  N.  W.  R.  1,  57  Am.  St.  R. 
St.  370,  45  N.  E.  R.  712,  60  Am.  294;  Wadsworth  v.  Western  I'nion 
St.  E.  706;  Philadelphia  etc.  Eail-  Tolegrai)h  Co..  MS  Tcnn.  695.  8  8. 
road  Co.  v.  Larkin,  47  Md.  155,  28  W.  R.  574.  6  Am.  St.  R.  864;  we 
Am.  R.  4-12;  Du  Lauraus  v.  St.  Paul  post,  sec.  437. 

191 


§§  428-429  OF  ACTIONS  AGAINST    CAKKIEKS.  ' 

ing.  All  are  part  of  the  injury.  But  by  the  weight  of  author- 
ity there  can  be  no  recovery  for  fright,  not  accompanied  but 
followed  by  physical  injuries,  both  because  such  physical 
injuries  are  regarded  as  too  remote  and  uncertain  to  be  a 
proper  element  of  damage,  and  because  allowance  of  them 
would  open  the  door  to  a  flood  of  litigation  over  imaginary 
and  fictitious  claims.  Some  of  the  courts  have  adopted  a 
broader  rule  and  have  allowed  damages  even  in  this  last  case. 

§  428.  Exemplary  damages.— The  cases  can  not  be  recon- 
ciled as  to  the  circumstances  that  justify,  in  addition  to  com- 
pensatory damages,  an  allowance  by  way  of  "smart  money." 
It  is  a  general  rule  that  for  the  wanton,  wilful,  malicious  or 
recklessly  negligent  conduct  of  the  carrier,  or  of  his  agents  or 
servants  in  the  course  of  their  employment,  the  law  allows 
not  only  damages  by  way  of  compensation  for  the  injury  but 
also  exemplary  damages  as  a  salutary  example  to  induce  upon 
the  part  of  carriers  that  regard  for  human  life  and  personal 
safety  which  the  law  so  highly  regards  and  so  carefully  pro- 
tects. 

C.    Actions  Against  Carriers  of  Intelligence. 

(/.     Carriers  of  the  Mails. 

§  429.  No  action  can  be  maintained  against  the  Post  Office 
Department,  as  the  government  can  not  be  sued,  and  a  private 
person  has  no  action  against  a  contractor  for  carrying  the 
mail,  since  he  is  employed  and  owes  his  duty  to  the  govern- 
ment to  which  alone  he  is  responsible  (§  379). 

§  428.      Goddard  v.   Grand   Trunk  123  Pa.  St.  140,  16  Atl.  K.  607,  10 

Eailway  Co.,  57  Me.  202,  2  Am.  K.  Am.     St.     E.     517,     note;     Pullman 

39;    Spellman   v.   Richmond  &  Dan-  Palace  Car  Co.  v.  Eeed,  75  111.  125, 

ville  Eailroad  Co.,  35  S.  C.  475,  14  S.  20  Am.  E.  232 ;   Hansley  v.  James- 

E.  R.  947,  28  Am.  St.  E.  858  and  ex-  ville    etc.    Eailroad    Co.,    115    N.    C. 

tended  note;  Gillingham  v.  Ohio  Eiv-  G02,  20  S.  E.  E.  528,  44  Am.  St.  E. 

er  &  Eailroad  Co.,   35  W.  Va.   588,  474;  Barker  v.  Ohio  Eiver  Eailroad 

14  S.  E.  E.  243,  29  Am.  St.  E.  827 ;  Co.,    51    W.    Va.   423,    41    S.    E.    E. 

Frink    v.    Coe,   4   G.    Green    (Iowa)  148,   90   Am.   St.   E.    808;    Phlladel- 

555,    61    Am.    D.    141;    Gorman    v.  phia  etc.  Eailroad  Co.  v.  Larkin,  47 

Southern   Pacific  Co.,  97   Cal.   1,   31  Md.    155,   28   Am.   E.    442,   see   also 

Pac.   E.   1112,   33   Am.   St.   E.    157;  note  to  59  Am.  St.  E.  602. 
Pittsburg  etc.  Eailway  Co.  v.  Lyon, 

192 


ACTIONS  AGAINST  CARRIERS  OF    IXTELLIGENCE.  |§  430-431 

6.    Telegraph  and  Telephone  Companies. 

1.    The  Parties  to  the  Action.    2.    Th(  Form  of  the  Action. 

§  430.  Contract  or  tort  action. — Actions  again.st  telejfraph 
companies  may  be  on  the  contract  to  transmit  thr  nn-ssasre, 
or  in  tort  for  breach  of  the  duty  the  company  owes  tlje  public 
to  serve  all  impartially  and  faithfully.  Actions  against  tele- 
phone companies  as  carriers  usually  arise  over  refusal  to  fur- 
nish service.  The  use  of  mandamus  to  compel  the  telephone 
company  to  fulfill  its  public  function  in  such  cases  has  already 
been  sufficiently  explained  (§  401). 

§  431.  An  action  on  the  contract  may  be  maintained  by  the 
sender,  for  he,  as  principal  or  agent,  makes  the  contract  with 
the  company  and  may  hold  it  to  a  faithful  performance  of  the 
agreement.  Moreover  any  one  for  whose  benefit  the  sender 
made  the  contract  is  in  effect  a  principal,  disclosed  or  undis- 
closed, and  as  such  is  a  proper  party  plaintiff  in  an  action  on 
the  contract  made  by  his  agent  on  his  behalf. 

It  has  been  said,  with  less  reason,  that  the  telegraph  com- 
pany is  the  agent  of  the  party  who  selects  that  means  of  com- 
munication. If  therefore  the  sendee  has  so  selected  the  tele- 
graph company  then  the  company  is  liable  to  him  as  an  agent 
to  his  principal.  And  by  some  courts  this  principle  is  ex- 
tended to  cases  generally  and  it  is  said  that  the  addressee  who 
has  suffered  actual  damage  may  sue  the  telegraph  company  as 
his  agent. 

§431.     [—1     Harkness    v.    West-  R.  23;   Shingleur  v.  Western  Union 

em   Union   Telegraph   Co.,   73  Iowa  Telegraph  Co.,  72  Miss.  1030,  18  So. 

190,  34  N.  W.  R.  811,  5  Am.  St.  R.  R.  425,  48  Am.  St.  R.  604 ;  Cnrland 

672;   Western  Union  Telegraph  Co.  v.    Western    Union    Telegraph    Co., 

V.    Adams,   75   Tex.    531,    12    S.   W.  US    Mich.    369,    76    N.    W.    R.    762. 

R.   857,  16  Am.  St.  R.   920;   Wads-  74   Am.   St.   R.   .394;    (-)    Montxor 

worth   V.   Western  Union   Telegraph  v.  Western  Union  Telegraph  Co.,  93 

Co.,  86  Tenn.  695,  8  S.  W.  R.  574,  Iowa   752,  62   N.   W.   R.   1,  57   Am. 

6   Am.   St.   R.   864;   Western  Union  St.  R.  294;   Coit   v.   Western   Union 

Telegraph  Co.  v.  Henderson,  89  Ala.  Telegraph    Co.,     130    Cal.    657.    63 

510,    7   So.   R.   419,   18   Am.   St.   R.  Pac.  R.  83,  80  Am.  St.  R.  153;  But- 

148.    [_]    Ayer   v.   Western   Union  ler  v.  Western  Union  Telcgmpb  Co., 

Telegraph  Co.,  79  Me.  493,  10  Atl.  62  S.  C.  222,  40  S.  E.  R.  162.  89  Am. 

R.  495,  1  Am.  St.  R.  353;  Western  St.  R.  893;  Unite*!  Stated  TcIcRmph 

Union  Telegraph  Co.   v.  Wilson,  93  Co.   v.   Gilderslevo.   29    Md. 

Ala.   32,   9  So.   R.   414,   30   Am.   St.  Am.  D.  .'>19. 

13  \\r.] 


§§432-434  OF  ACTIONS  AGAINST    CAEKIEES. 

In  England  the  addressee  is  held  not  to  be  a  party  to  the 
contract,  and  therefore  he  can  not  sue  upon  it,  but  in  this 
country  that  view  has  never  prevailed.  There  is  so  great 
diversity  of  view  as  to  the  ground  upon  which  an  action  can 
be  brought  that  general  statements  are  difficult,  but  the  above 
seem  to  be  the  most  rational  explanations  of  the  contract  rela- 
tions of  the  parties. 

§  432.  A  tort  action  may  be  maintained  by  any  one  to 
whom  the  company  owes  the  duty  of  correct  transmission  and 
prompt  delivery.  When,  therefore,  it  undertakes  to  deliver  a 
message  to  an  addressee  it  is  liable  for  legal  injuries  to  him, 
and  also  to  the  sender,  and  to  any  third  party  who  is  the 
real  party  in  interest,  for  the  faithful  performance  of  the 
duty  undertaken.  But  this  does  not  extend  to  third  parties 
who  may  or  may  not  have  an  interest  in  the  message,  who 
are  strangers  to  the  company,  and  to  whom  it  owes  no  duty; 
nor  does  it  extend  to  any  one  who  has  suffered  no  legal 
wrong. 

3.  The  Pleadings. 

§  433.  Governed  by  general  rules. — No  special  mention  of 
the  pleadings  in  actions  against  telegraph  companies  is  called 
for.     The  general  rules  of  pleading  control. 

4.  The  Evidence. 

%  434.  Burden  of  proof.— Error  or  delay  in  transmitting  a 
message  raises  a  presumption  of  negligence  which  casts  upon 
the  company  the  burden  of  proving  that  the  fault  was  due 

§432.     Western  Union  Telegraph  R.    153;    Butler    v.    Western    Union 

Co.  V.  Dubois,  128  111.  248,  21  N.  E.  Telegraph    Co.,    62    S.    C.    222,    40 

E.  4,  15  Am.  St.  E.  109;  [— ]  Webbe  S.   E.   E.   162,   89   Am.   St.   R.   893; 

V     Western    Union    Telegraph    Co.,  Young  v.  Western  Union  Telegraph 

169   111.   610,   48   N.   E.   E.   670,   61  Co.,  107  N.  C.  370,  11  S.  E.  E.  1044, 

Am.  St.  E.  207;  Gray  v.  Telegraph  22  Am.  St.  E.  883;  Clay  v.  Western 

Co.,  108  Tenn.  39,  64  S.  W.  E.  1063,  Union    Telegraph   Co.,    81    Ga.    285, 

91  Am.  St.  E.  706;  Pegram  v.  West-  6  S.  E.  E.  813,  12  Am.  St.  E.  316; 

ern  Union  Telegraph  Co.,  100  N.  C.  Shingleur    v.    Western    Union    Tele- 

28,   6   S.   E.   E.    770,   6   Am.   St.   E.  graph  Co.,  72  Miss.  1030,  18  So.  E. 

.5.^7;   Western  Union  Telegraph  Co.  425,  48  Am.  St.  E.  604. 

V.    Henderson,    89    Ala.    510,    7    So.  §434.       [— ]       Ayer    v.    Western 

R.  419,  18  Am.  St.  R.  148;   Coit  v.  Union   Telegraph    Co.,    79    Me.   493, 

Western   Union   Telegraph   Co.,   130  10  Atl.  R.  495,   1  Am.  St.  R.   353; 

Cal.  657,  63  Pac.  R.  83,  80  Am.  St.  |— ]    Telegraph  Co.  v.  Griswolcl,  37 

194 


ACTIONS  AGAINST  (JAREIERS  OF   IXTELLrcl.  .^  - 

to  causes  beyond  its  control,  or  of  showing  that  it  exercise.1 
all  proper  care  and  diligence  commensurate  with  the  imd-T- 
taking. 

Some  cases  hold  that,  when  the  company  assumes  liabflily 
for  errors  only  in  case  the  message  is  repeated,  that  in  the 
case  of  unrepeated  messages  the  burden  is  nn  th<-  plaintiff  to 
show  that  the  errors  were  due  to  negligence.  In  such  ease  a 
mere  error  is  not  prima  facie  evidence  of  negligent  transmiwioii. 

5.     TJie  Damages. 

§  435.  The  measure  of  damages  lor  loss  due  to  the  negli- 
gence of  the  company  is  the  damage  sustained.  This  may 
include  the  price  paid  for  the  message  and  any  other  inj:-.- 
which  flowed  proximately  and  naturally  from  the  <Kf;> 
and  which  is  certain  and  not  speculative  and  contingent  m 
its  nature  (sec.  416).  Exemplary  damages  may  be  added 
where  malice  or  aggravating  circumstances  are  shown. 

Illustrations  of  damages  allowed  because  of  a  mistake  in 
the  telegram  or  a  delay  in  its  transmission  are :  loss  of  time 
or  expense  incurred,  loss  of  a  claim  against  a  debtor,  Ioks  of 
an  opportunity  to  buy  or  sell  property,  purchase  at  an  in- 
creased or  a  sale  at  a  decreased  price,  and  loss  or  destruction 

Ohio     St.     301,     41     Am.     R.    500;  433,  1  Am.  R.  285;   Aiken  v.  West- 

[ — ]    Harkness    v.    Western    Union  tern  Union  Telegraph  Co.,  69  lown. 

Telegraph  Co.,  73  la.  190,  34  N.  W.  31,  28  N.  W.  R.  419,  58  Am.  R.  210; 

R,  811,  5  Am.  St.  R.  672;  Fowler  v.  Western    Union    Telegraph    Co.    v. 

Western    Union    Telegraph    Co.,    80  Neill,  57  Tex.  283,  44  Am.  R.  5*<9; 

Me.   381,  15  Atl.  R.   29,  6  Am.  St.  Womack    v.    Western    Union    Telo- 

R.    211;    Western   Union    Telegraph  graph  Co.,  58  Tex.   17(>,  44   .\ni,  R. 

Co.  V.  Crall,  38  Kan.  679,  17  Pae.  R.  G14. 

309,    5    Am.    St.    R.    795;    Western  §435.      Smith    v.    Western    Union 

Union  Telegraph  Co.  v.  Dubois,  128  Telegraph   Co.,   83   Ky.    104,   4   Am. 

111.  248,  21  N.  E.  R.  4,  15  Am.  St.  St.     R.     126;      Pegram  v.   Wentom 

R.  109;  Reed  v.  Western  Union  Tele-  Union  Telegraph  Co..  lOn  .\.  C.  2S. 

graph  Co.,  135  Mo.  661,  37  S.  W.  R.  6  S.  E.  R.   770,  6  Am.  St.  R.  r>.^7 : 

904,  58  Am.  St.  R.  609;   Hendricks  |— 1    Ayer   v.   Western    Tnion   T.'L- 

V.    Western    Union    Telegraph    Co.,  graph   Co..   79   Mo.   493.   10   AtJ.    R. 

126  N.  C.  304,  78  Am.  St.  R.  658;  -J95,   1   Am.  St.  R.  353:   |  — 1    I' 

Tyler   v.   Western   Union   Telegraph  ness  v.  Western  Union  ToIcKrapt 

Co.,  60  111.  421,  14  Am.  R.  38.  73   Iowa   190,   34   N.   W.   R.   Hll.   S 

Contra:    United  States  Telegraph  Am.  St.  R.  672;  Western  Uniou  TH- 

Co.  V.  Gildersleeve,  29  Md.  232,  96  ograph  Co.  v.  Reynol.ls.  77  Viu  173. 

Am.  D.  519;  Sweetland  v.  Illinois  &  46  Am.   R.   715;   Squire  v.   W.  ^•. 

Mississippi  Telegraph  Co.,  27  Iowa  Tnion  Telegraph  Co.,  9S  Ma*v 

11)3 


§436 


OF  ACTIONS  AGAINST    CARRIERS. 


of  property.  But  damages  cannot  be  recovered  for  a  failure 
to  gain  possible,  but  uncertain  profits.  It  is  always  the  duty 
of  the  injured  party  to  use  all  reasonable  diligence  to  avoid  or 
lessen  the  damages. 

§  436.  Duty  to  disclose  importance  of  message. — The  de- 
cisions are  sc^uarely  in  conflict  as  to  the  liability  for  loss  when 
the  company  was  not  informed  of  the  special  importance  of 
the  message  and  of  the  loss  that  may  result  for  default  in  its 
proper  transmission  and  delivery.  The  authorities  agree  that 
the  loss  must  result  naturally,  and  in  the  usual  course  of  busi- 
ness from  failure  to  send  or  deliver  the  dispatch  correctly 
or  promptly.  But  they  differ  as  to  what  results  are  natural 
and  in  the  usual  course  of  business. 

One  line  of  decisions  holds  that  there  is  a  presumption 
when  the  parties  resort  to  the  telegraph  that  they  have  mat- 


93  Am.  D.  157;  Tyler  v.  Western 
Union  Telegraph  Co.,  60  111.  421, 
14  Am.  R.  38;  Manvillc  v.  Western 
Union  Telegraph  Co.,  37  Iowa  214, 
18  Am.  R.  8;  McPeek  v.  Western 
Union  Telegraph  Co.,  107  Iowa ,  356, 
78  N,  W.  R.  63,  70  Am.  St.  R.  205; 
Barnes  v.  Western  Union  Telegraph 
Co.,  24  Nev.  125,  50  Pae.  R.  438,  77 
Am.  St.  R.  791 ;  Western  Union  Tel- 
egraph Co.  V.  Dubois,  128'  111.  248, 
21  N.  E.  R.  4,  15  Am.  St.  R.  109; 
Reed  v.  Western  Union  Telegraph 
Co.,  135  Mo.  661,  37  S.  W.  R.  904,  58 
Am.  St.  R.  609 ;  Pepper  v.  Telegraph 
Co.,  87  Tenn.  554,  11  S.  W.  R.  783, 
10  Am.  St.  R.  699;  Western  Union 
Telegraph  Co.  v.  Sheffield,  71  Tex. 
570,  10  S.  W.  R.  752,  10  Am.  St.  R. 
790;  Alexander  v.  Western  Union 
Telegraph  Co.,  66  Miss.  161,  5  So. 
K.  397,  14  Am.  St.  R.  556;  Gulf  etc. 
Railway  Co.  v.  Loonie,  82  Tex.  323, 
18  S.  W.  R.  221,  27  Am.  St.  R.  891; 
Clay  V.  Western  Union  Telegraph 
Co.,  81  Ga.  285,  6  S.  E.  R.  813,  12 
Am.  St.  R.  316;  [— ]  True  v.  Inter- 
national Telegraph  Co.,  60  Me.  9,  11 
Am.  R.  156;  Western  Union  Tele- 
graph  Co.  V.   Graham,   1   Colo.   230, 


9  Am.  R.  136;  Shingleur  v.  Western 
Union  Telegraph  Co.,  72  Miss.  1030, 
18  So.  R.  425,  48  Am.  St.  R.  604. 
As  to  a  telephone  company  see  Cum- 
berland Telephone  and  Telegraph  Co, 
V.  Hurdon,  —  Ky.  — ,  60  L.  R.  A. 
849. 

§  436.  The  following  cases  illus- 
trate the  first  rule:  Pepper  v.  Tele- 
graph Co.,  87  Tenn.  554,  11  S.  W. 
R.  783,  10  Am.  St.  R.  699;  Western 
Union  Telegraph  Co.  v.  Edsall,  74 
Tex.  329,  12  S.  W.  R.  41,  15  Am. 
St.  R.  835;  Western  Union  Tele- 
graph Co.  V.  Adams,  75  Tex.  531,  12 
S.  W.  R.  857,  16  Am.  St.  R.  920; 
Postal  Telegraph  Co.  v.  Lathrop,  131 
111.  575,  23  N.  E.  R.  583,  19  Am. 
St.  R.  55 ;  Hendershott  v.  Western 
Union  Telegraph  Co.,  106  Iowa  529, 
76  N.  W.  R.  828,  68  Am.  St.  R.  313 ; 
Davis  V.  Western  Union  Telegraph 
Co.,  107  Ky.  527,  54  S.  W.  R.  849, 
92  Am.  St.  R.  371 ;  [— ]  True  v.  In- 
ternational Telegraph  Co.,  60  Me.  9, 
11  Am.  R.  156;  Tyler  v.  Western 
Union  Telegraph  Co.,  60  111.  421,  14 
Am.  R.  38;  Western  Union  Tele- 
graph Co.  V.  Reynolds,  77  Va.  173, 
46  Am,  R.  715,  note;   Daughtery  v. 


196 


THE  ACTION   AND  DAMAGES. 


§437 


ters  of  importance,  especially  if  th<'  message  shows  on  its 
face  that  it  relates  to  a  commercial  transaction  or  other  im- 
portant matter.  The  unimportant  mt'ssage  is  to  be  rfgartled 
as  the  exception  and  not  the  rule,  and  if  the  coiupany  d'Mreg 
fuller  information  it  should  seek  it. 

But  the  weight  of  authority  is  that,  if  the  im-s.sa{4L-  i.s  in 
cipher  or  does  not  on  its  face  show  that  it  relates  to  trans- 
actions of  importance,  the  rule  of  Hadley  v.  Baxendale  ap- 
plies,  and  the  company  is  not  liable  for  special  losses  unb»ii8 
their  agent  was  informed  of  the  importance  of  the  luesKatfe 
when  it  was  offered  for  transmission. 

§  437.  Damages  for  mental  suffering  and  injury  to  feeling? 
resulting  from  default  in  delivering  a  telegram,  by  the  weiyhl 
of  authority,  can  not  be  recovered,  unless  there  is  other  Bub- 
stantial  injury  which  is  aggravated  by  the  sufTerings  of  the 
mind.  The  rule  has  already  been  stated  (see.  427  i  as  applitnl 
to  carriers  of  passengers.    But  there  are  many  ca.ses,  and  the 


American  Union  Telegraph  Co.,  75 
Ala.  168,  51  Am.  R.  435;  Western 
Union  Telegraph  Co.  v.  Hyer,  22  Fla. 
637,  1  Am.  St.  R.  222. 

Contra,  Smith  v.  Western  Union 
Telegraph  Co.,  83  Ky.  104,  4  Am.  St. 
R.  126;  f — ]  Fergusson  v.  Anglo- 
American  Telegraph  Co.,  178  Pa.  St. 
377,  35  Atl.  R.  979,  56  Am.  St.  R. 
770;  Baldwin  v.  United  States  Tele- 
graph Co.,  45  N.  Y.  744,  6  Am.  R. 
165;  Candee  v.  Western  Union  Tele- 
graph Co.,  34  Wis.  471,  17  Am.  R. 
452;  Hibbard  v.  Western  Union 
Telegraph  Co.,  33  Wis.  558,  14  Am. 
R,  775;  United  States  Telegraph  Co. 
V.  Gildersleeve,  29  Md.  232,  96  Am. 
D.  519;  Western  Union  Telegraph 
Co.  V.  Wilson,  32  Fla.  527,  37  Am. 
St.  R.  125  (overruling  Hyer  case, 
supra). 

§437.  For  liability:  [— ]  Ment- 
zer  V.  Western  Union  Tele- 
graph Co.,  93  Iowa  752,  62 
N.  W.  R.  1,  57  Am.  St.  R.  294; 
[_]  Western  Union  Telegraph  Co. 
V.  Van  Cleave,  107  Ky.  464,  54  S. 
W.    K.    827,    92    Am.    St.    R.    366; 


Wadswortli  v.  Western  Union  Tele- 
graph Co.,  86  Tenn.  695,  8  S.  W. 
R.  574,  6  Am.  8t.  R.  864;  Ciraliam 
V.    Western    Union    Telegraph    Co. 

(1903),   La.   Ann.   34   a 

R.  91 ;  Western  Union  Telegraph 
Co.  V.  Cooper,  71  Tex.  507,  9  8.  W. 
R.  598,  10  Am.  St.  R.  772,  and  ex- 
tended note;  Western  Union  Tele- 
graph Co.  V.  Nations,  82  Tex.  539, 
]g  S.  W.  R.  709,  27  Am.  St.  R.  918, 
note;  Western  Union  Telegraph  Co. 
V.  Wilson,  93  Ala.  32,  9  So.  H.  414, 
30  Am.  St.  R.  23.  (Compare  West- 
ern Union  Telegraph  Co.  v.  Ayer«, 
131  Ala.  391,  31  S.  R.  78,  90  Am.  8t. 
R.  92.)  Butler  v.  Western  Union 
Telegraph  Co.,  62  S.  C.  222.  40  8. 
E.  R  162,  89  Am.  St.  R.  893.  note; 
Young  V.  Western  Union  Telegraph 
Co.,  107  X.  C.  370,  11  S.  E.  R. 
1044,   22   Am.   St.   H.   «S3. 

Contra,  Francis  v.  Western  Union 
Telegraph  Co.,  .IS  Minn.  252.  59  N. 
W.  R.  1078,  49  Am.  St.  R.  507; 
1  —  1  West  V.  Western  Union  TcJ«'- 
graph  Co.,  39  Kan.  93.  17  Par.  R, 
S07,   7   Am.   St.   R.   530;   Chapman 


197 


§  437  OF  ACTIONS  AGAINST    CARRIERS. 

number  is  growing,  in  which  it  is  held  that  the  very  purpose  of 
a  telegram  may  be  a  mere  matter  of  feelings,  and  that  as  the 
company  undertakes  a  duty  with  referenee  to  such  feelings  it 
is  justly  chargeable  with  the  direct  and  proximate  results  of 
failure  faithfully  to  perform  such  duty. 

The  most  serious  objection  to  such  an  extension  of  the  rule 
is  the  uncertainty  of  the  damage,  the  opportunity  for  fraud 
and  the  encouragement  to  litigation.  Though  the  weight  of 
authority  is  still  against  it,  the  modern  tendency  is  marked 
toward  the  broader  view  which  makes  the  company  liable  for 
the  breach  according  to  the  nature  of  the  contract,  and  which 
often  furnishes  the  only  basis  for  damages  in  cases  where  the 
company  has  been  guilty  of  the  grossest  dereliction  of  duty. 

V.  Western  Union  Telegraph  Co.,  88  egraph    Co.    v.    Henderson,    89    Ala. 

Ga.   763,   15   S.   E.   R.   901,   30  Am.  510,    7   So.   R.   419,    18   Am.   St.   R. 

St.    R.    183;     Morton     v.     Western  148.      In    many    of    the    states    the 

Union    Telegraph    Co.,   53    Ohio    St.  question  has  not  as  yet  been  passed 

431,   41   N.   E.   R.  689,   53  Am.   St.  upon    with    reference    to    telegraph 

R.  648;  see  also  Western  Union  Tel-  companies. 


r 


198 


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